China’s Foreign-Related ‘Rule of Law’: The Evolution of an Idea

In November 2023, the Politburo of the Central Committee of the Communist Party of China (CPC) held a special study session on the ‘foreign-related rule of law’ (Shewai Fazhi, 涉外法治, hereinafter, ‘foreign-related RoL’) (Xinhua 2023; Rudolf 2023). It then took little time, in the Chinese academic circles, for the ‘foreign-related RoL’ to not only become a new focal point in China’s discourse on ‘rule of law’, but also to be described as a necessary national strategy.^{Footnote 1} In July 2024, the Central Committee of the CPC held its 3rd Plenary Session of the 20th Party Congress, at which a Decision on Further Deepening Comprehensive Reforms to Advance Chinese-style Modernization was adopted (Hereinafter the 2024 CPC Decision). This Decision was soon to be described as a blueprint for reforms in the ‘New Era’ and a landmark in comprehensive reforms (People’s Daily 2024; Xinhua 2024), and as part of the blueprint, Paragraph 37 is dedicated to ‘strengthening the ‘foreign-related RoL’.

The 2024 Decision thus officially elevates the development and strengthening of the ‘foreign-related RoL’ to the status of a national development strategy.

However, neither the notion of ‘rule of law’ nor that of the ‘foreign-related RoL’ is new in Xi’s China. It is however true that the notion has been much talked about by the Party-State authorities and, indeed, by Xi Jinping himself, and academic discussions of the notion have been intensified in recent years and the notion has been developing rapidly and becoming increasingly comprehensive and sophisticated as a notion and as an idea. This ‘foreign-related RoL’ now forms part of the Chinese legal system that would impact not only individuals in China and abroad but also the global ‘rules-based’ politico-economic order.

Academic literature in English on ‘foreign-related RoL’ has also began to emerge in the last few years. Rudolf, for instance, provides a reasonably comprehensive review of the scope of ‘foreign-related RoL’ and its recent development (Rudolf 2023). Erie, who has been the most prolific author on this topic, analyses the notion in the context of law and development, and Sino-US relations and China’s efforts in geopolitical contention against the US (Erie 2023a, b, c). Finder, on the other hand, offers an update and specialist review of the Supreme People’s Court’s efforts in implementing ‘foreign-related RoL’ policies through judicial efforts and international judicial cooperation (Finder 2023). Still others examine the need for training the specialist experts for ‘foreign-related RoL’ (Dong and Guo 2024). Our efforts and focus here are on the historical evolution of the notion, taking into consideration of the more recent geopolitical contention in our world today and placing the development of ‘foreign-related RoL’ in the context of Chinese legal development as well tensions and conflict in international relations.

In this paper we first review the emergence of the notion ‘foreign-related RoL’, focusing on the fluid nature of this notion and its shifting focus. This is followed by an analysis of its intended functions and roles in international affairs in the context of the existing and developing ‘foreign-related’ legal framework,^{Footnote 2} the development of which has been partially propelled by the superpower rivalries and geopolitical contentions in the world today. Through such analysis, it is hoped that a nuanced understanding of the notion of, and the development of the legal framework for, the ‘foreign-related RoL’ could significantly enhance our understanding of China’s handling of foreign-related issues and China’s conduct in global affairs. Further, it is also hoped that ‘foreign-related RoL’ will provide a means to hold China accountable to its conduct in international relations, as the development of the notion and its associated legal framework has now established some basic rules, albeit some are still vague and lacking details, that are made in and by China.

Any foreign visitors to China from the mid-1970s to early 1980s may well remember that their presence in Chinese streets often caused a scene, as if they were aliens landing on a new planet that is called China. The reality then was that China had been closed to foreign visits, for citizens of most countries, since the founding of the People’s Republic of China (the PRC) in 1949. As a result, China was a negligible and isolated player in the world economy and politics by the time it began to implement the ‘Reform and Opening Up’ policies in 1978. Little in Mao’s China then was ‘foreign-related’, and having a foreign connection (海外关系) was a negative label that was often used against people having such a connection as people connecting to foreign enemies (通敌) (Legal Daily 2018). This was particularly so during the Cultural Revolution (1966–1976).

When Deng Xiaoping came to power in 1977–1978, China was on the edge of economic collapse, and the legitimacy of the Communist leadership was in question. The announcement of the ‘Four Modernisations’ program was a direct response to the crisis, and it was clear to Deng Xiaoping that to fund the ambitious modernisation program and to raise the standard of living for the Chinese people, China needed not only foreign technology and foreign capital, but also foreign management expertise, marketing experience and marketing networks. He thus launched the ‘Open Door’ policy whose implementation depended on the stability of Chinese society. This stability was to be supported by a new governing instrument called ‘law’ and its associated institution (Chen 2016, Chapter 2). For this purpose, laws were to be made and were indeed made rapidly, and among the first seven major laws enacted in Deng’s China was the Law on Sino-foreign Equity Joint Venture.^{Footnote 3} Thereafter, ‘foreign-related law’ (Shewai Falü, 涉外法律) and, after enactment of an increasing number of such laws, ‘foreign-related legal system’ (Shewai Fazhi, 涉外法制) form a part of the post-Mao Chinese legal system and the ‘Reform and Opening Up’ programs, as well as discourses on the Chinese legal system and its reforms.

Initially, Chinese law used the term ‘Sino-foreign’ (中外) in its legislation,^{Footnote 4} while academic discourse often applied the term ‘foreign-related’ (‘涉外’) to cover other possibilities of foreign-related legal matters and, in this academic discourse, the meaning of ‘foreign-related’ (‘涉外’)—a concept said to be unique in contemporary China (Ma 2023, p. 98)—was assumed.^{Footnote 5} The academic phrase was however soon taken up by increasing number of legislation in civil and commercial areas, with the most important ones being the Civil Procedural Law (trial implementation) 1982 (now repealed), which included a special book (Book Five—Chapters 19–23) on special provisions on foreign-related civil litigation, and the 1986 General Principles of Civil Law (now repealed), which included a special chapter, Chapter 8 on Application of Law in Foreign-related Civil Relations (Arts 142–150). Though both laws were, in the Chinese legislative hierarchy, ‘fundamental’ laws, none of them defines what would constitute ‘foreign-related’ civil relations.

After relying on the technical, pragmatic and gradually expanding judicial interpretations issued by the Supreme People’s Court (SPC) for many years,^{Footnote 6} the Law on the Application of the Law in Foreign-related Civil Law Relations was finally issued in October 2010, but it again failed to define what would constitute a ‘foreign-related’ legal matter. Not surprisingly, it once again falls on the SPC to provide practical guidance.^{Footnote 7} For practical purposes (though principally in relation to civil matters), it can be said that a ‘foreign-related’ matter is one that involves at least one foreign party (by criteria of normal residence, or nationality, or place of incidents) or in which the matter is inherently foreign in nature as decided by a court.^{Footnote 8} Obviously, in relation to ‘foreign-related RoL’, it also includes Chinese views on foreign relations between and among sovereign nations.

Subtle changes have also been taken place in academic discourses as well as perception of law’s role in society and governance. First, since the enactment of the first seven major laws in 1979, we have witnessed an ever-increasing number of laws enacted in China and the development of an expanding legal system. We have also witnessed some significant conceptual development in relation to law and rule of law. Among these developments was the terminological change from 法制 to法治 in around 1996, that is often said by Chinese legal scholars as a transition from ‘rule by law’ to ‘rule of law’.^{Footnote 9} In this context, the use of ‘涉外法治’,^{Footnote 10} instead of ‘涉外法制’, in the present discourse seems to be a natural development that, on the one hand, reflects the development of Chinese law and the Chinese legal system and, on the other hand, suggests an evolution of the nature and expansion of meaning of the term.

Until this day, there is however, no official definition on ‘foreign-related RoL’, as a legal or political concept or as a national strategy. There have been some major efforts by Chinese scholars that attempt to define the notion,^{Footnote 11} even though a commonly accepted definition is yet to emerge from China. In this context, the notion is more precisely described as an academic construct which is still evolving rapidly and, at the same time, impacts on China’s diplomatic relations as well as global geopolitical contention.

As often is the case in Xi’s ‘New Era’, Chinese academic literature often repeats ad hoc Party policies, the latest legal development and, most importantly, speeches by Xi Jinping.^{Footnote 12} At the same time, academic efforts in turn also facilitate a more systematic and comprehensive process of policy and legal development. The development of ‘foreign-related RoL’, as a legal notion or concept, typically reflects such inter-action between academic efforts and Party policies and legal development and, unsurprisingly, much of the literature on this academic construct (of ‘foreign-related RoL’) offers little more than standard yet restraint repetition of the available policy statements and speeches of Xi Jinping;^{Footnote 13} onclusion and application of treaties; extraterritsophisticated analytic and conceptual studies are hard to come by. These problems are pointed out rather succinctly by Huo Zhengxin:

At the moment, many discussions on ‘foreign-related RoL’ have been undertaken in the legal circles, but their main focus is on the importance of it and interpretations of policies on constructing ‘foreign-related RoL’. There are insufficient studies on the concept of ‘foreign-related RoL’, its characteristics and boundaries, and other basic studies and jurisprudential exposition. This insufficiency then leads to the problems of inaccurate use of the notion, insulation [of the notion] from domestic rule of law, and equating ‘foreign-related RoL’ with international rule law. It also constrains the innovative development of Chinese legal theories on ‘foreign-related RoL’ and undermines the foundational functions of ‘foreign-related RoL’ in establishing China’s own knowledge system of legal theories (Huo 2025).^{Footnote 14}

Among those who attempt to conceptualise the notion, different approaches are taken. Some attempt to give definitions according to their own individual understandings of the notion (ie. not basing their definitions on existing policies and law), others try to do so by defining the scope of ‘foreign-related relations’, still others equalise ‘foreign-related RoL’ with international rule of law (Huang 2022b, p. 12). The most common approach to defining the notion is a functional approach, defining the notion by covering all the functions of the concept. A typical definition is as following:

Foreign-related RoL refers to state sovereign activities undertaken by state authorities, departments and units of foreign affairs, under the unified and centralised leadership of the Party, and in accordance with rules of Rule of Law, thoughts on Rule of Law, and methods of Rule of Law, to deal with foreign affairs, conduct external struggles, promote international cooperation, participate in global governance, and lead peace and development. It also includes legal activities by citizens, legal persons and other non-official foreign relations legal subjects to avoid risks in accordance with customs, to resolve disputes, and to protect their rights and interests in accordance with law and rules (Zhang 2025, p. 7).

According to Professor Zhang, the cord tasks of foreign-related RoL can be summarised as ‘four applications/uses’ (‘四用’): targeted extraterritorial application of Chinese law; selected application of foreign laws in China; skilful application of foreign laws of specific countries; and effective use of international law (Zhang 2025, pp. 7–9).

A slightly more abstract approach then defines the concept thus:

Foreign-related RoL refers to the sum, in the socialist legal system with Chinese characteristics, of ideas, principles, systems and rules that regulate foreign-related relations, including law-making, foreign-related enforcement of law, foreign-related administration of justice, foreign-related legal services, and Sino-foreign judicial cooperation (Huang 2022b, p. 12).

As alluded to above, many others attempt to clarify the meaning by ascertaining the boundaries of the notion in relation to other laws and branches of studies. These efforts, for practical purposes, are perhaps more useful than abstract conceptualisation. While major disagreements exist among Chinese scholars (Huang 2022a, p. 45), there are some common understandings among them.

First, ‘foreign-related RoL’ is about ‘rule of law’ in foreign-related areas. As such, the meaning of ‘rule of law’ is assumed and it is deemed as the same as that in domestic legal affairs. This approach assumes that the meaning of ‘rule of law’ in domestic law is settled in China, which is of course not the case. One presumption is, however, safe to make, that is, ‘rule of law’ in contemporary China principally means ‘rule by law’: using law to achieve goals and objectives set out by the CPC. The presumption of a settled understanding of the meaning of ‘rule of law’ probably explains why little efforts have been made by Chinese scholars to explain the meaning of ‘rule of law’ in their discussions about ‘foreign-related RoL’.

Secondly, Chinese academics have made it clear that ‘foreign related laws/legal system/RoL’ is part of the domestic legal system, even though Chinese scholars and official documents often talk about coordinated development of domestic rule of law and foreign-related rule of law.^{Footnote 15} Further, international law is, to a certain extent, the foundation for the ‘foreign-related RoL’, but ‘foreign-related RoL’ is a separate concept.^{Footnote 16}

Thirdly, ‘foreign-related RoL’ is not a branch of law (like civil law or criminal law) in the Chinese legislative system, though there is an increasing body of laws that are ‘foreign-related’ and an increasing number of dedicated research institutes on ‘foreign-related RoL’ having been established in China.^{Footnote 17}

Fourthly, the above ‘presumptions’ and ‘exclusions’ effectively leave the conceptualising ‘foreign-related RoL’ to questions of treating ‘foreign-related’ matters as special issues in ‘domestic’ law and defining the relationship between ‘international’ law and ‘foreign-related’ law (as part of ‘domestic’ law).

Fifthly, even as a legal tool, ‘foreign-related RoL’ is not just about laws and legal mechanisms to attract foreign investment and to promote trade; it is, as a national strategy, a part of the China governance model, a concern with national security, and a mechanism for political/diplomatic relations (Ma 2023, pp. 101–104).^{Footnote 18} In other words, it is no longer a mere private law concern; it is a concept covering both public and private law. As such, ‘foreign-related RoL’ concerns not only legal matters that have foreign connection such as matters relating to or concerning foreign parties, or the involvement of a foreign jurisdiction, but also responses to foreign requirements, demands, sanctions, and China’s own demands for reforms in the international governance more generally. It is asserted by some Chinese scholar that, ultimately, ‘foreign-related RoL’ is to transform laws and rules with Chinese characteristics into universal laws and rules in international affairs (Ma 2023, pp. 102–103), as some scholars see the contemporary world offers the best chance in history to create a new world order (Huang 2022a, p. 39), a claim that was endorsed by the Chinese official media (People’s Daily 2018).

Finally, as will be further discussed below, while the development of ‘foreign-related RoL’ reflects the ever-expanding legal framework regulating ‘foreign-related’ matters, it has also been propelled by the superpower rivalries and geopolitical contentions in the world today. As such, the intended or perceived functions, and hence the nature and scope, of the ‘foreign-related RoL’ also evolves and is continuing to evolve. The changing nature of ‘foreign-related RoL’ does not, however, mean that the roles of ‘foreign-related RoL’ evolved from one to another, rather, it is a process of expansion and development, with new roles and functions being consciously added to the ‘foreign-related’ legal framework. In this process, the legal framework performs different functions simultaneously though different aspects were emphasised at different times, depending on the perceived needs by the CPC leadership. Thus, different functions of the ‘foreign-related RoL’ can be distinguished, but none exist in isolation, and this is especially so in relation to the defensive and offensive functions in Xi’s New Era.^{Footnote 19}

Clearly, there is a lack of precise and concise conception of ‘foreign-related RoL’, but this should not blind us to the practical importance of the concept; it only means that what matters most is the legal framework (laws and mechanisms) that has been established to deal with foreign-related matters and that performs functions as discussed below.

The initial efforts to create ‘foreign-related’ laws had a clear and transparent mission—to facilitate foreign trade and to attract foreign investment. It is however important to point out that, the earlier laws were also mostly experimental (often only applicable within a specifically designated areas called special economic zones or other development areas), ad hoc and vague, reflecting the long-standing ambiguity towards market economy while maintaining a socialist political system.^{Footnote 20}

The guiding principle in conducting foreign affairs before the ‘New Era’ under Xi Jinping is often summarised in the phrase ‘hiding the strengths and supplementing the weaknesses’ (Tao Guang Yang Hui韬光养晦) that was emphasised by Deng Xiaoping.^{Footnote 21} This phrase has often been translated into ‘keeping a low profile so as to buy more time’ or ‘keep a low profile and bide your time’ or simply ‘hide-and-bide’. Despite different interpretations and translations (Xiong 2010), Deng’s objectives were clear: to create a supportive external environment while maintaining receptive internal conditions for China’s economic development. For these purposes, Deng also warned that China must not, nor was it in any position to, take leadership roles in international affairs and must not be seen as the leader of the Global South (Suresh 2022; Li 2008). In short, China wanted a peaceful external environment and wanted to rise quietly.

There were signs that China was to, or was encouraged to, take on a more active and assertive stand on international affairs in commensurate with its economic development and powers before Xi’s ‘New Era’. However, post-Deng China under Jiang Zemin and Hu Jintao largely adhered to Deng’s strategies, and the ‘wolf-warrior’ approach to diplomacy and international affairs was yet to emerge. Thus, until quite recently, it could be said that China had not challenged the western-originated multilateral framework nor had it had any clear or comprehensive plan to replace the existing system with a China-led system (Cohen 2019: p. 124). China did, however, demand a larger share of policy-making powers in global affairs and, like many other super powers, has been selective in complying with international norms.^{Footnote 22} In terms of ‘foreign-related RoL’, laws regulating foreign relations were mostly ad hoc towards specific situations, principally designed to facilitate China’s economic development, to implement the ‘Open Door’ policies by providing incentives, reducing trade and investment barriers, and to comply with China’s international obligations accrued through international treaties.^{Footnote 23} Importantly, after China joined the WTO in 2001, massive and systemic legislative programs, at central and local levels, were undertaken to ensure that Chinese laws and regulations would comply with China’s obligations arising out of its WTO negotiation results and membership.^{Footnote 24}

Deng’s strategies worked well for China; post-Mao China maintained its best GPD growth from 1992 (when Deng Xiaoping undertook its ‘Southern Tour’) to 2012 (when Xi Jinping took over power from Hu Jintao).^{Footnote 25} Thus, China became the second largest economy in 2010 from the sixth largest in 2001 when it joined the WTO^{Footnote 26} and, as such, it is fair to say that China was then the largest beneficiary of globalisation through its WTO membership and other international cooperation arrangements.

To be clear, there was no sudden policy U-turn in China under Xi Jinping. In fact, continuing efforts were made to facilitate foreign trade and investment during much of Xi’s rule and, among these efforts are those to make the ad hoc facilitating laws more systematic (such as the promulgation of the comprehensive Foreign Investment Law (2019) to replace the three separate foreign investment law) and investment restrictions more transparent (through the issuing of negative lists). These efforts continued to transform China economically: Chinese GDP in 2019 (when Covid hit China and then the world) was US$14.3 trillion (66.8% of that of the US), in comparison China’s GDP in 2001 (when China joined the WTO) was only US$1.3 trillion (12.3% of the US’s GDP at that time).^{Footnote 27}

With its strengthening powers, economic and military, China inevitably would be playing a more active and leading role in global affairs, because of its own needs or being called upon by other countries. It was at this junction of China’s rise and its demands for a greater role in global governance and, at the same time, America’s pivot to Asia, that first caused the significant tensions in the global environment. These tensions soon led to geopolitical contention and conflict and, hence, China’s re-orientation of work on foreign-related law,^{Footnote 28} that included a gradual change of China’s practice in international cooperation and choice of international partnerships.

First, when the 2008 global financial crisis (GFC) landed in the US and quickly spread to other countries, the G7^{Footnote 29}—the very core force supporting the ‘old’ liberal economic order—was clearly not strong enough to contain the crisis and, hence, the first ever G20 summit was convened to fight against it and China made a positive and significant contribution to help contain the crisis.^{Footnote 30} The G20 is not just an institution composed of G7 and emerging economies; it includes members with some entirely different politico-economic systems. Perhaps more important than the differences between the G20 members were the measures taken by all these countries to combat the impacts of the GFC which were in every sense against the liberal economic order ideology. This is because the principal measure taken was to inject trillions of dollars of public money to effectively transfer private debts into the public sector and to bail out private firms which were in financial stress—a practice that represented a major crack in the liberal economic order.^{Footnote 31} Further, as mentioned above, by 2010, China had become the second largest economy just behind the US. Not surprisingly, China not only saw itself as being called upon to rescue the world economy, but also gained much confidence regarding its own politico-economic system and, later, the rise of the so-called China model (but more recently, it is referred to as the ‘Chinese-style modernisation’), in Xi’s China.^{Footnote 32}

Secondly, and quite ironically (at least in terms of timing), just as China was called upon to assist the resolution of GFC, America began its ‘Pivot to Asia’ policy which saw China as a major rival in global as well as Asian geopolitical affairs (Lieberthal 2011; Castro 2013, pp. 331–349). This is especially clear in regional economic cooperation agreements—a practice in which China has always involved a geo-political element (Wang and Chen 2023, Chapter 3)^{Footnote 33}—especially the negotiation of the so-called super regional trade agreements (RTA).^{Footnote 34} Crucially, the so-called super RTA is not about size, but agreements that have the potential to change the nature of and to rewrite free trade agreements and, in most cases, also covering investment (liberalisation, protection, facilitation and cooperation, and dispute resolution). Adding to this potential coverage is the so-call ‘Anyone-but-China’ (ABC) approach to forming such agreements. Not surprisingly, among the various proposed ‘super’ RTAs China was only participating in the negotiation of the Regional Comprehensive Economic Partnership (RCEP), which is largely Asia-focused. In the case of the Trans-Pacific Partnership (TTP),^{Footnote 35} the negotiation of which China was excluded, and on which the then US President Barack Obama declared in 2016:

As a Pacific power, the United States has pushed to develop a high-standard Trans-Pacific Partnership, a trade deal that puts American workers first and makes sure we write the rules of the road for trade in the 21st century. … America should write the rules. America should call the shots. Other countries should play by the rules that America and our partners set, and not the other way around. … The United States, not countries like China, should write [the rules] (Obama 2016).

Not surprisingly, Chinese policymakers considered such agreements as the TPP ‘a force that could rip apart the regional economic integration of East Asia’ (Song and Yuan 2012, p. 107). In their opinion, and also in light of the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), the TPP was seen as nothing but ‘a tool to economically contain China’s rise’ (People’s Daily 2013, p. 6; Song and Yuan 2012, p. 107; Mulgan 2013). Sceptical scholars then viewed the TPP as the geopolitical medium for the United States’ return to the region and a front for a ‘soft confrontation’ with China (Song and Yuan 2012, p. 109).^{Footnote 36} A prominent (but unnamed) China trade policy expert expresses this view thus:

The rise of China’s economic power and the strengthening of East Asian economy have broken the existing global trade structures. Western powers now intend, through the negotiations of TPP and TTIP, to rewrite trade rules and regain their leadership powers in international trade. By doing so, Western powers will share the economic prosperity while also contain the ever increasing influence of China (People’s Daily 2013, p. 6).

By then, not only was China confident of its own governance model; it had accumulated close to four trillion US dollars in reserve that needed to and could be utilised internationally (Chen 2016, pp. 864–871). This led to the so-called ‘One Belt One Road’ Initiative (the BRI)—a project first announced by President Xi at the Peripheral Diplomacy Work Conference in October 2013 where he declared: ‘We must build the Silk Road Economic Belt and 21st Century Maritime Silk Road, creating a new regional economic order’ (Cai 2017, p. 3). Though lacking clarity, certainty and consistency, as far as the implementation of the BRI is concerned (Wang and Rosenau 2009; Mazarr et al. 2018; Hart and Johnson 2019; Cohen 2019; Pathirana 2018), it was a Party/State project that is both planned, coordinated, and implemented by the State, not by market forces. Importantly, it emerged at a time when China perceived a need and possibility to take a proactive approach to international relations in responding to the geopolitical repositioning and rebalancing of global powers. China believed that there was an international consensus that it was China’s turn to shape the international order (Wang 2018, pp. 241–242),^{Footnote 37} or that it was time for China to promote new multilateral institutions that follow China’s norms and principles (Yuan 2019, p. 95). As such, the BRI reflected ‘a fundamental competitive tension around the question of whether China or the United States will ultimately determine the rules for trade and investment in the region’ (Meltzer 2017).

The BRI, together with the Asian Infrastructure Investment Bank (AIIB) and other ‘going out’ strategies,^{Footnote 38} was consequently widely perceived as a Chinese geopolitical strategy that demands the repositioning and rebalancing of international powers,^{Footnote 39} especially between the rising powers and the ‘super’ powers. Such a perception is then reinforced, from time to time, by the Chinese media, such as the Xinhua News Agency, and by Chinese academics. Thus, Xinhua stressed that the BRI is in fact a Chinese geopolitical strategy (Xinhua 2015a; Xinhua 2015b; Hu 2015). The BRI is hailed as the gift of ‘Chinese wisdom’ or ‘project of the century’ (The Economist 2018b), and it is part of China’s global governance push or Chinese renaissance scheme (China Think Tank 2017; Yuan 2019, pp. 96–99). Some Chinese scholars went so far as to claim that the BRI is an avenue to a ‘post Westphalian world’, which of course is to be interpreted as a fundamental challenge to the current global political and economic status quo (Wade 2018).

Besides the BRI, there were pre-Xi BRICS and Shanghai Cooperation Organization (SCO) and, later under Xi, the ‘no-limit’ cooperation between China and Russia. Both the BRICS and the SCO were Russia and China led forums. In particular, the BRICS, initially composed of Brazil, Russia, India, China, and South Africa but now also include Egypt, Ethiopia, Iran, and the United Arab Emirates with some 40 more countries having expressed interest in joining, has been seen by Russia and China as potential forum to challenge and even replace the existing liberal order established and maintained by the US and its allies (Gabuev and Stuenkel 2024).

As such, China’s rise turns out to be a point of contention between China and the US and its allies.^{Footnote 40}

If the the BRI is China’s first offensive ‘foreign-related RoL’ strategy,^{Footnote 41} its approach to global governance, especially to its rhetoric insistence on multilateralism, has not been consistent; its practice, in relation to the implementation of BRI remains fundamentally bilateral in nature. Not surprisingly, China’s behaviour in multilateralism is described as such:

China has expressed its commitment to a fair and equitable global governance model. At the same time, China’s engagement in favour of multilateralism is sometimes selective and based on a different understanding of the rules-based international order. While China has often repeated its legitimate request for reforming global governance to give greater participation and decision-making power to emerging economies, it has not always been willing to accept new rules reflecting the responsibility and accountability that come with its increased role. Selectively upholding some norms at the expense of others weakens the sustainability of the rules-based international order (European Commission 2019, p. 2).

Seen from this perspective, BRI as China’s first offensive ‘foreign-related RoL’ practice has left much to be desired. There is not yet a concrete suggestion that would bring the BRI into a RoL scheme or under international rules or under the existing institutional arrangements.

Thirdly, the election of the populist Trump as US President in 2017 soon intensified the geopolitical tension and conflict. The Trump administration was no friend of free trade nor indeed to the liberal economic order. Globalisation was in retreat and ‘deglobalisation’ gained currency during Trump’s administration, and trade sanctions (through such means as imposition of heavy tariffs) seemed to be his favoured instrument for furthering his ‘America First’ policies.^{Footnote 42}

If the populist ‘America First’ policy was to end after the election of Biden in 2020 (who took office in 2021), another global crisis was soon to strike much harder at the liberal economic order. A once-in-a-century global health crisis—the Covid-19 pandemic—emerged towards the end of 2019 with its severe health and economic impacts continuing until this day. Government responses to it, almost universally, have revealed the weaknesses and downsides of, and challenged many assumptions for, free trade and investment as the cornerstone of the liberal economic order. In order to deal with the impacts of Covid, governments were not just injecting massive amounts of money, mostly borrowed, into their economies; they were bailing out all kinds of companies and firms as well as supporting private employment.^{Footnote 43} Facing the shortage of health protective equipment and Covid-19 vaccines and medicine, export controls were soon imposed by many countries, openly or covertly.^{Footnote 44} Coupled with the lingering ‘America First’ ideology, ‘decoupling from China’ took hold in popular and some academic discourse (Rapoz 2020; Witt 2020; Rudd 2019).^{Footnote 45} Finally, when supply chains were interrupted by the continuation of the Covid-19 pandemic, which also caused major inflation in many countries, diversification of supply chains and deglobalisation soon became fashionable, with many countries actively encouraging the ‘re-shoring’ or ‘friend shoring’ of manufacturing.^{Footnote 46} More recently, the Indo Pacific Economic Framework (IPEF) and the China Strategy of the US (China Strategy 2022)^{Footnote 47} then firmly placed geopolitical struggles on trade and investment agenda. What has not been considered is that, all these reactions and responses, not driven by markets but by governments, are diametrically opposed to the liberal economic ideology that many of these countries wish to uphold and, most ironically, gave credibility to China’s state-led capitalism as an alternative model. Thus, the recently issued Indo Pacific Strategy (Indo Pacific Strategy 2022) is clearly a part of the parties’ security considerations and, indeed, the Indo-Pacific Economic Framework for Prosperity (IPEF) (Joint Statement 2022) is no longer a traditional trade only framework.

It is in the above geopolitical contest that two further features, defensive and offensive, of the ‘foreign-related RoL’ gained momentums in the last few years. A tit-for-tat sanctions war (initially between China and the US and, later, between China and other countries) thus started during the first Trump Administration, but continued during Biden administration.^{Footnote 48} Major defensive/offensive laws and measures were issued in 2020 and 2021, that include the Provisions on Unreliable Entity List (Ministry of Commerce 2020), Measures on Security Review of Foreign Investment (National Development and Reform Commission 2020), Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures (Ministry of Commerce 2021), and the Anti-foreign Sanctions Law (NPC Standing Committee 2021).

More broadly, while the US was working on its Indo Pacific strategy and responses to China’s increasingly assertive standing on global affairs, China under Xi also began to elaborate a comprehensive vision of a new world order and governance in the name of ‘human community of shared destiny’(人类命运共同体renlei mingyun gongtongti)^{Footnote 49} based on a traditional Chinese idea of ‘Tianxi’,^{Footnote 50} in which China would take a prominent leading role in establishing a new type of international relations. China has also, on many occasions, become assertive and even aggressive in certain areas of international tension, such as in its responses to criticisms on its practice in the South China Sea. In a recent policy statement on international relations and global governance (White Paper 2019), China continues its rhetoric about establishing a ‘human community of shared destiny’ and a new type of international relations, as well as the promotion of economic globalisation (Li 2016; Huang 2019). Here, China is trying to use the notion of ‘human community of shared destiny’ to offer an alternative vision of international relations and, hence, a different world view and a different set of values (Yuan 2019, p. 108).

China also made it clear that it wants a new international governance mode based on its idea of a ‘human community of shared destiny’. Thus, as recently as May 2022, Chinese Foreign Minister Wang Yi, conducting an on-line meeting with Cambodian Deputy Prime Minister and Foreign Minister, stated that ‘Facing various new global challenges, President Xi Jinping successively proposed the Global Development Initiative (GDI) and the Global Security Initiative (GSI). From the perspective of building a ‘human community with shared destiny’ for mankind, he put forward a Chinese approach to establishing a global governance system with greater justice and equity, which has been widely supported and echoed by the international community, especially Asian countries’ (Wang 2022). Minister Wang Yi then declared that global governance is now ushering in an ‘Asian Moment’. It seems, in this context, the global community is facing a very serious ideological and value conflict and, hence, uncertainty and tension in international governance.^{Footnote 51}

As mentioned earlier,while the 2024 Party Decision elevates ‘foreign-related RoL’ to the status of a national strategy, the notion itself remains only an academic construct, without an official definition or any detailed elaboration. However, it is clear that ‘foreign related RoL’, as a national strategy, is a part of the China governance model, a concern with national security, and a mechanism for political/diplomatic relations (Ma 2023, pp. 101–104). As such, ‘foreign-related RoL’ concerns not only legal matters that have foreign connection such as matters relating to or concerning foreign parties, or the involvement of a foreign jurisdiction, but also responses to foreign requirements, demands, sanctions, and China’s own demands for reforms in the international order more generally.

As a national strategy, the scope and tasks for ‘foreign-related RoL’ have taken some years to development.

Initially, Paragraph 7 (7) of the 2014 CPC Decision resolves to strengthen the foreign-related legal work (涉外法律工作).^{Footnote 52} It then outlines the following tasks for China to undertake (all in a slogan-style language):

1. (1)

   to adapt to the increasingly deepening of opening up to the outside world, perfect foreign-related system of law and regulations, and to stimulate the construction of new structures for an open economy;

2. (2)

   to actively participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to law, to strengthen our country’s discourse power and influence in international legal affairs, and to use legal methods to safeguard our country’s sovereignty, security and development interests;

3. (3)

   to strengthen foreign-related legal services, safeguard the proper interests of our country’s citizens and legal persons abroad, and foreign citizens and legal person in our country, and to safeguard the rights and interests of overseas compatriots according to the law;

4. (4)

   to deepen international cooperation in the judicial area, perfect our country’s judicial assistance systems, and to expand the scope of international judicial assistance, strengthen international cooperation on anti-corruption, expand strength to pursue stolen goods and fugitives overseas, as well as for repatriation and extradition; and

5. (5)

   to actively participate in international cooperation concerning law enforcement and security, to jointly attack forces of violent terror, ethnic separatist forces, religious extremist forces, drug smuggling and cross-border organised crime.^{Footnote 53}

The above thus outlines the tasks for legal reforms in the foreign-related areas and, to this day, forms a most comprehensive outline of legal reform tasks in the areas. Interestingly, the 2014 CPC Decision refers these tasks as foreign-related legal work (涉外法律工作), not that of ‘foreign-related RoL’. However, Para 6 (3) of the same 2014 Decision resolves to build up a ‘foreign-related RoL’ personnel force (涉外法治人才队伍) that has a thorough understanding of international law and rules and that is capable of dealing with foreign related matters.^{Footnote 54} This perhaps is the first time the term ‘foreign-related RoL’ appears in official (Party) document, but only in relation to the training of legal personnel.

As mentioned above, the 2019 CPC Decision was the first Party document that used the term ‘foreign-related RoL’. As the title of the document indicates, the Decision was about Chinese governance and governance capacities. Paragraph 13 (1) proposes.

to strengthen foreign-related rule of law work, establish foreign-related legal affairs work system, strengthen the study and application of international law, and to advance the institutionalisation of foreign-related rule of law.

Paragraph 13 of the 2019 Decision is entitled ‘Maintaining and Perfecting Independent, Autonomous and Peaceful Foreign Policy, Promoting the Construction of the Human Community of Shared Destiny’. This Paragraph thus talks about the Party leadership, China’s foreign policy principles, China’s need for opening up and going out, and China’s determination to participate in international governance and to gain powers to lead in international affairs through dissemination of Chinese views.

The 2019 CPC Decision was soon followed by the ‘Outline for the Construction of a Rule of Law in China’ (2020–2025), issued by the Central Committee of the CPC in 2021. Paragraph 25 of the Outline is dedicated to ‘foreign-related RoL’, stressing the need for foreign-related laws and regulations, improvement of capacity to provide foreign-related legal services, international cooperation and dispute resolution.

Most recently, the 2024 CPC Decision resolves:

to establish mechanisms for taking a holistic approach to promoting law-making, law enforcement, administration of justice, observance of the law, legal services, and the training of legal professionals for foreign-related affairs. To improve the system of foreign-related laws and regulations and the systems for enforcing the rule of law, and the work to deepen international cooperation in law enforcement and administration of justice. To perfect the judicial system that allows the parties in foreign-related civil lawsuits to lawfully enter into jurisdictional agreements and choose applicable foreign laws. To improve the arbitration and mediation system for international commercial disputes and cultivate world-class arbitration organisations and law firms. To actively participate in the formulation of international rules.^{Footnote 55}

Additionally, Paragraph 53, entitled ‘Improving Foreign-related National Security Mechanisms’, talks about the protection of overseas Chinese interests, and strengthening mechanisms for countering foreign sanctions, interference, and long-arm jurisdiction.

On its surface, the 2024 CPC Decision offers very little that is new in the foreign-related domain. The above paragraph (Para 37) does, however, present a systematic and comprehensive statement of actions in law-making, administration and enforcement of law, dispute resolution, and international cooperation and rule-making. The objectives of these tasks are, of course, to create an external environment for the realisation of the so-called Chinese-style modernization.^{Footnote 56} And in foreign-related affairs, the overall objectives are for China to ‘pursue an independent foreign policy of peace and to be dedicated to promoting a ‘human community with shared destiny’.’ More specifically, China resolves.

• to commit to the common values of all humanity, pursue the Global Development Initiative, the Global Security Initiative, and the Global Civilisation Initiative, and to promote an equal and orderly multipolar world and universally beneficial and inclusive economic globalisation;

• to deepen institutional reforms concerning foreign affairs and to be involved in leading the reform and development of the global governance system;

• to safeguard China’s sovereignty, security, and development interests and to foster a favourable external environment for further deepening comprehensive reforms to advance Chinese modernisation.^{Footnote 57}

These are principal Party decisions on ‘foreign-related RoL’ and, together, they do outline a comprehensive scope of the ‘foreign-related RoL’ and, in an abstract form, act as a national strategy in international affairs with reasonably clear objectives. What should be added here is that the 2014 and 2024 Party Decisions also call for the training of legal specialists in ‘foreign-related RoL’, for the purposes of facilitating the development and implementation of national strategy.^{Footnote 58} Further, while the 2014 and 2024 Party Decisions did not directly link the ‘foreign-related RoL’ to the protection of investment interests in the BRI, other implementing documents made it clear that ‘foreign-related RoL’ is needed for the protection of such interests.^{Footnote 59} Finally, fostering the development of China’s discourse and narrative systems through China’s international communication mechanism that disseminates China’s world views, or in Chinese language, outward propaganda (对外宣传),^{Footnote 60} is always part of such ‘foreign-related RoL’.^{Footnote 61}

‘Foreign-related RoL’, as a national strategy, forms the cornerstone of the Law on Foreign Relations,^{Footnote 62} a law that was actually drafted by the CPC’s Central Foreign Affairs Commission though adopted by the NPC’s Standing Committee (SCNPC 2023). While it looks like a rather short law in 45 brief articles, it nevertheless lays down a foundation for legal development for the ‘foreign-related RoL’.^{Footnote 63} Article 1 of the Law makes clear its objectives, which are to

• safeguard China’s sovereignty, national security and development interests;

• protect and promote the interests of the Chinese people;

• modernise China into a powerful socialist country;

• realise the great rejuvenation of the Chinese nation;

• promote world peace and development; and

• build a ‘human community with shared destiny’.

Chapter 1 (Articles 1–8) of the Law lays down the guiding principles for foreign relations. It lists all guiding ideologies, from Marxism, Mao Zedong Thought to Deng Xiaoping Theories, ‘Three Represents’, Scientific Development and, of course, socialism with Chinese characteristics in Xi’s New Era.^{Footnote 64} It reiterate the Five Principles^{Footnote 65} as the basic principles for international order,^{Footnote 66} and the UN Charter as the basic rules for conducting foreign relations.^{Footnote 67} However, the most impactful principles are those contained in Article 5, which declares that all works on foreign relations must maintain the unified and centralised leadership of the CPC. This Provision is further implemented by Article 9 of the Law that makes the CPC (through its Central Foreign Affairs Commission), rather than the National People’s Congress (NPC) or its Standing Committee or the State Council or the Ministry of Foreign Affairs, the leading body responsible for policy making, deliberation, coordination and supervision in relation to the conduct and development of foreign relations. This provision effectively renders state authorities as implementing agencies, accountable to the CPC, despite the fact that the Chinese 1982 Constitution grants the various foreign-related powers and functions to the NPC, its Standing Committee, and the State Council (and the State Military Commission for military cooperation). The State authorities are further, specifically, charged with the tasks of translating the CPC’s Global Development Initiative, the Global Security Initiative and the Global Civilisation Initiative into practice.^{Footnote 68} While rhetorically China has always insisted that it is a developing country, Article 18 implicitly admits its own superpower status when it stipulates that China will promote coordination and positive interaction among big countries (大国).

Beyond these grand principles, the Law on Foreign Relations is in fact vague and ambiguous.^{Footnote 69} It even fails to address the fundamental long-standing practical issue on the status and effect of international law in the Chinese legal system. Article 30 of the Law states that ‘[t]he state is to conclude or accede to treaties and agreements in accordance with the Constitution and laws, and fulfill the obligations provided in the relevant treaties or agreements in good faith.’ Article 31 then provides that ‘[t]he state will take appropriate measures to implement and apply treaties and agreements’. As such, the Law fails to clarify the most important practical issues that have puzzled Chinese scholars and practitioners for years: what kind of measures, which authorities are to make such measures, how the measures might be taken, and what is the status of customary international law in China?

Huang Huikang, as mentioned above, the most prominent Chinese scholar on ‘foreign-related RoL’, suggests that the Law has now established a clear architecture for foreign relations and, implicitly, for ‘foreign-related RoL’, and this architecture is described by him as the establishment of ‘Four Ridges and Eight Pillars’(‘四梁’ ‘八柱’) (Huang 2023, p. 13). The ‘Four Ridges’ refers to the overall objectives in foreign relations, the general layout (总体布局) for foreign relations, China’s views on global governance, and the basic principles for foreign cooperation.^{Footnote 70} The ‘Eight Pillars’ then refers to eight working mechanisms/institutions (制度) that support the ‘Four Ridges’:^{Footnote 71} the conclusion and application of treaties; extraterritorial application of Chinese law; counter-sanctions and restrictive measures; implementation of sanctions adopted by the UN Security Council; sovereign immunity; protection of overseas interests of the state; and [financial and other] support for the development of foreign relations. These are indeed the general coverage of the new Law that collects the elements from the various Party Decisions, laws and regulations on ‘foreign-related RoL’. However, the working mechanisms are, until this day, a work-in-progress. In other words, the Law on Foreign Relations has now outlined a clear structure for the ‘foreign-related RoL’, but with many details yet to be worked out. In this context, it makes better sense to read, as it is often the case in Chinese law, the Law as a statement of China’s legal policies on foreign relations.^{Footnote 72} From a different perspective, the Law is a legal restatement of the national strategy on the ‘foreign-related RoL’. As such, what matters most are specific laws that implement the various aspects of the ‘Four Ridges and Eight Pillars’.

First, legislation for foreign-related economy (trade and investment) remains the largest body of laws in the areas of ‘foreign-related RoL’, and its most prominent achievement in recent years in this area is the enactment of a comprehensive Foreign Investment Law in 2019, which consolidates three separate foreign investment laws that had served China since 1979. On the other hand, however, while pre-Xi China had always welcomed foreign investment, this has not always been the case in Xi’s China. The issuance of the Measures for the Security Review of Foreign Investment in 2020^{Footnote 73} is a good example, when China formally established a mechanism to introduce the fluid notion of national security into the examination and approval processes for foreign investment,^{Footnote 74} a notion (and, of course, the associated laws and regulations) that more often than not introduces uncertainties and unpredictability into the investment environment.^{Footnote 75}

Second, the most prominent development in the ‘foreign-related RoL’ is in the more general category of national security in general. The actual legal development considering national security has often, but not always, been a result of responding to tensions between the US and China as well as the perceived need by the government for the protection of national security. A most clear example is the enactment of the Law of the PRC on Countering Foreign Sanctions in 2021.^{Footnote 76} This brief law, 16 brief articles in total, was enacted largely for a single purpose—to counter sanctions that might be imposed on Chinese individuals or entities.^{Footnote 77} Although China did not name the US in its rationale for the enactment, it made no secret that this Law was made in responses to ‘Western’ (often a coded word for the US) practice of imposing sanctions on China (SCNPC 2021). Additionally, a large number of laws have been enacted in the areas of national security. Thus, there are the Anti-Secession Law (2005), the National Security Law (2015), the Law on Countering Espionage (2014), the Law on Anti-Terrorism (2015), the Anti-Organised Crimes Law (2021), the Cybersecurity Law (2016), the National Intelligence Law (2017), the National Data Security Law (2021), the 2024 revised Law on the Protection of State Secrets, and the Administrative Law on the Activities of Foreign Non-Governmental Organizations (2016). These laws contain some of the most severe penalties in the Chinese legislative system and, importantly, many of these laws also contain provisions on extra-territorial application.^{Footnote 78}

Thirdly, in relation to the protection of state interests, China’s various practices have been rather inconsistent. On the one hand, ever since the establishment of the China Coast Guard,^{Footnote 79} China seems to have established a rather ‘wolf warrior’ reputation in the South China Sea.^{Footnote 80} On the other hands, the recently adopted Law on Foreign State Immunity basically abandons China’s long-held doctrine of absolute foreign state immunity and accepts a more internationally held standard of ‘restrictive’ doctrine.^{Footnote 81} Further and very impressively, the Supreme People’s Court,even though it sees and declares itself as being, first of all, a political authority,^{Footnote 82} has strived to secure peaceful resolution of disputes and judicial cooperation in China’s implementation of ‘foreign-related RoL’ in general, but especially in relation to the implementation and practice of the BRI.^{Footnote 83}

Finally, as is the usual practice in all other areas of law in China,^{Footnote 84} it is important to note that a principal law in China is meant to be implemented by other laws on specific aspects of the principal law and/or by administrative regulations and ministerial rules, as well as judicial interpretations as issued by the Supreme People’s Court and Supreme People’s Procuratorate. As such, the Law on Foreign Relations is indeed a work-in-progress that provides flexibilities and adaptability for future development.

In short, the ‘foreign-related RoL’, initially an academic construct, is now a national strategy that has a comprehensive coverage of foreign-related matters. However, it is still a work-in-progress and it is subject to changes in response to the fluid situations of super powers rivalries and geopolitical contention. It is also a strategy that is capable of different interpretation to suit the perceived needs of the time, present or future, just as the Chinese law and regulations in general that are always vague and general in nature.

Despite the use of rule of law (法治) in the phrase, the ‘foreign-related RoL’ is essentially a work-in-progress national strategy composed of various laws and regulations. It is a typical example of ‘rule by law’, reflecting a utilitarian/instrumentalist perception of law’s functions in society (in this case, in international relations). The various legal mechanisms (the ‘Eight Pillars’) are indeed plainly referred to as tools in a ‘tool box’ (工具箱) that are to be used to attract foreign trade and investment, to defend China’s interests in geopolitical contention, and to advance China’s interests globally (Huang 2023, pp. 6–11).

To categorise ‘foreign-related RoL’ as either ‘rule of law’ or ‘rule by law’,^{Footnote 85} the critical test would be whether the emphasis on ‘foreign-related RoL’ and the establishment of the legal mechanisms would provide certainty and predictability in China’s conduct in international affairs. The reality is, as a powerful trading nation and a growing (albert not as rapidly as a decade ago) economy with a politico-economic system that rejects many liberal assumptions for democracy and rule of law, China’s rise, but especially its demand for a leadership role in international governance is, by definition, going to be contentious. This is especially so when China has increasingly exercised its economic muscle through geo-economic measures, which are sometimes outside legal remedies in dispute resolution as contained in multilateral, regional and bilateral agreements, in support of China’s geopolitical contest and manoeuvring.^{Footnote 86}

There is another issue that China will need to address, before the ‘foreign-related RoL’ may gain international recognition and credibility. There is, perceived or real, a China ‘credibility deficit’ problem caused by the inconsistency between undertakings and actual practice. On this critical issue, the two most quoted ‘credibility deficit’ events are the promise made by Xi in the White House Rose Garden that ‘China does not intend to pursue militarization’ in the South China Sea and the subsequent deployment of missiles in the artificial islands in the South China Sea,^{Footnote 87} and China’s promise not to hack western countries for political or economic reasons (Stoke 2019).In addition, more recently, China’s reluctance to share information in relation to the Covid outbreak does not help addressing this critical issue.^{Footnote 88}

In short, while we should not dismiss the development of ‘foreign-related RoL’ out of hand, it would be over-optimistic to think that such a development would automatically bring certainty and predictability into China’s conduct in international affairs and geopolitical contention. What we might hope for is, however, that ‘foreign-related RoL’, as a legal tool designed and made by and in China, could also be applied as a means to hold China accountable to its conduct in international affairs—a tall order? We shall see.^{Footnote 89}