Article 63 of the National Solidarity and Progress Promotion Act: How to Create Overseas Legal Risks

China's National Unity and Progress Promotion Law has been in effect for more than two months, and one of the most influential words outside the territory is only a few dozen words.Provisions of Article 63Organizations and individuals outside the territory of the People's Republic of China, if they carry out acts against China that "destroy national unity and progress and create national division", will be investigated for legal liability in accordance with the law.

This means that a foreign citizen who has never entered China, if his overseas speech or activity is identified by the Chinese authorities as the above acts, from the Chinese domestic French text, can also enter the scope of the object of being prosecuted. whether the law can really be enforced in foreign territory is another thing, but "considered responsible by Chinese law" itself, can affect the risk judgment of visas, entry, assets in China, family relations and travel with China existing law enforcement cooperation countries.

Article 63 does not specify “how to pursue” and remains an open-domain power.

Article 62 provides for criminal liability for violent terrorism, ethnic segregation and religious extremist activities; subsequent Article 63 extends the object to foreign organizations and individuals, but uses only the summary expression "legal liability pursued according to law" and does not list specific punishment methods, procedures or enforcement bodies in this article.

The importance of this type of writing is that it first establishes the domestic legal basis on which Chinese state organs claim legal responsibilities outside the territory.National People's Congress Standing Committee Law and Labour CommitteeIt was also made clear that the law “regulates the effect of application outside the jurisdiction”. thus, Article 63 is not a political slogan that arises by chance, but rather a clause that applies outside the jurisdiction to which the legislator consciously joins.

China’s Deputy Minister of Justice Hu Jintao openly defended this arrangement in June, saying that opposing and combating separatism, safeguarding national sovereignty and territorial integrity are the rights of all countries, and the relevant provisions are consistent with international practice.

International law allows for legislation outside certain territories, but law enforcement is another border.

National jurisdiction in international law can usually be distinguished into legislative jurisdiction, judicial jurisdiction and executive jurisdiction.The state claims a certain extent of extraterritorial legislation when it concerns its own national security, national or major interests, and it is not exclusive to China; there are also extraterritorial rules in the fields of sanctions, anti-terrorism, anti-corruption and transnational crime in the United States, European countries and other jurisdictions.

But what is really sensitive is enforcement.International law generally considers the law enforcement agencies of one country to exercise police power directly in the territory of another country as a matter involving the sovereignty of the host country.Chinese courts or public security agencies cannot, because of Article 63, obtain the power to conduct searches and detention in the United States, the Netherlands, Japan or India.The actual enforcement still depends on whether the person enters the control of China, whether a third country cooperates, and whether extradition, judicial assistance or other legal mechanisms exist.

This also explains why, even if it is difficult to enforce Article 63 directly in Western countries, it can still have real effects.The legal risk is not only “will not be caught in New York by Chinese police,” but whether a person found to be illegal by Chinese authorities can still safely enter China, Hong Kong, whether relatives in the territory are being investigated, and whether the risk of law enforcement cooperation should be considered when travelling through third countries.

From the Hong Kong National Security Law to the Law of National Unity, foreign political acts are being incorporated into domestic legal assessments.

Article 38 of the Hong Kong National Security Act has provided a precedent, stating that it applies to relevant national security crimes committed outside Hong Kong by non-Hong Kong residents.The Hong Kong police have subsequently issued searches and bribes to several overseas activists.The relevant countries do not therefore recognize Hong Kong’s power to enforce the law in its territory, but the cross-border activities and links with Hong Kong and mainland China are effectively affected.

Article 63 of the National Unity and Progress Promotion Act further extends similar logic to the field of national policy.Tibetans, Uighurs, Mongols and foreign organizations supporting relevant groups may need to re-evaluate whether their public initiatives would be interpreted by Chinese authorities as “making national divisions”.

Since July, public protests against the law have been raised in New York, Tokyo, San Francisco, Sydney, Amsterdam and more. Participants worry that language, religion and ethnic identity initiatives may be included in the framework of separatism; while the Chinese government stresses that the laws are aimed at promoting ethnic unity, opposing separation and securing the common development of ethnic groups. The conflict between the two cases will ultimately lie on specific law enforcement cases: which acts abroad are formally prosecuted, what legal measures are taken, and whether third countries are asked for assistance.

What really needs to be observed is what happens when Article 63 is used for the first time.

The boundaries of an extra-territorial provision are often not determined by the day, but are determined in the first case. Who is listed as the object, what crime or administrative measure is applied, which authority makes a decision, whether there is a legal remedy, these questions will determine whether Article 63 is a political legal statement primarily used to deter, or will develop into a law enforcement tool that can have consequences across multiple jurisdictions.

The most obvious fact is that the Chinese legislature has formally written overseas organizations and individuals into the legal responsibility chapter for ethnic affairs. For overseas ethnic minority communities and for activists who have personal, property, or commercial ties with China, this changes the risk structure: the laws of their country may fully protect their speech, but domestic laws may also define the same behavior as being legally liable.

How far the law can go beyond its borders depends ultimately on whether other countries recognize, assist or resist its actual implementation.Article 63 is therefore not only a Chinese national policy law, but also a long-term legal experiment on overseas jurisdiction, state sovereignty and overseas speech space borders.