What is the Foreign NGO Law, and why did the P.R.C. create it?
The “Law of the People’s Republic of China on Administration of Activities of Overseas Nongovernmental Organizations in the Mainland of China” was adopted by the National People’s Congress Standing Committee on April 28, 2016. It came into effect January 1, 2017.
The Chinese Communist Party (C.C.P.) has publicly stressed the need to regulate foreign NGOs in key Party meetings since October 2013. Party and State Council discussions of the law make it clear that the the People’s Republic of China (P.R.C.) government views foreign NGOs as a security issue first and a civil society issue second. The law is overtly linked to a slate of security-related laws introduced between 2014 and 2016, including the Counter-terrorism Law, National Security Law, and Cybersecurity Law. This view of foreign NGOs as a potential security threat is further underscored by the advent of the Charity Law in 2016, which deals with domestic Chinese NGOs and explicitly bifurcates the legal mechanisms to regulate local and international organizations.
The Foreign NGO Law also parallels increasing government regulations in other areas of public life, at least in part because the P.R.C.’s legal and regulatory systems are still catching up with the growing complexity of a country and society that has definitively shed the socioeconomic straitjacket of the Mao era. Foreign NGO operations in China were previously not well-regulated—and possibly were not even known to the government—so the law is also an attempt to survey and better control the “Wild West” of foreign NGO work that had developed in the mainland over the last few decades.
What does the law do?
The Foreign NGO Law mandates that foreign NGOs must register with the Ministry of Public Security (MPS) or its provincial-level equivalents before establishing an office within mainland China. If a foreign NGO wishes to carry out a “temporary activity” rather than open an office in China, it must file this information with the MPS. In both cases, foreign NGOs coordinate with a domestic Chinese organization in addition to the MPS. The time needed to complete registration or file for a temporary activity varies greatly.
Foreign NGOs are permitted to work in economics, education, science, culture, health, sports, environmental protection, poverty, and disaster relief but “must not endanger China’s national unity, security, or ethnic unity; and must not harm China’s national interests, societal public interest”, or engage in or fund for-profit, political, or religious activities (Articles 3, 5). Foreign NGOs must be legally established overseas, have been active for at least two years, and be able to independently bear civil liability (Article 10).
How does this differ from previous regulation of foreign NGOs?
Previously, foreign NGOs were overseen by the Ministry of Civil Affairs under the 2004 “Regulations for the Management of Foundations.” An earlier 1989 law regulated chambers of commerce under the Ministry of Foreign Economic Relations and Trade. While the 2004 law also required foreign NGOs to partner with domestic organizations, in practice most foreign NGOs were unable or unwilling to comply with the regulations. Most operated in a legal grey area with many registering as commercial entities. In 2015, only 29 foreign NGOs had registered representative offices with the Ministry of Civil Affairs.
Whom does the law affect?
Some reports suggest that more than 7,000 foreign NGOs will be affected, though the total number of foreign NGOs in China remains unclear. As of September 30, 2017, fewer than 250 foreign NGOs had registered to open representative offices in China, and fewer than 150 had begun a temporary activity. NGOs from Taiwan, Hong Kong, and Macau are also considered “foreign” under the law.
What is a . . .
Foreign NGO: “. . . foundations, social groups, think tanks and other non-profit, non-governmental social organizations legally established overseas” (Article 2). Notably, foreign groups such as schools, hospitals, and academic organizations carrying out exchanges or cooperation with their Chinese counterparts are outside the scope of the law (Article 53).
Representative Office: A foreign NGO’s permanent physical office in China, as approved and registered by the MPS. To register a representative office, a foreign NGO must find and pair with a Professional Supervisory Unit that will support its application, which is then submitted to the MPS. Foreign NGOs that maintain a sustained presence in China but do not register a representative office are in violation of the law.
Professional Supervisory Unit: One of the government or government-affiliated organizations the MPS has approved to act as an official sponsor for a foreign NGO with a representative office (i.e. a sustained presence) in mainland China. The MPS maintains a growing list of approved PSUs.
Temporary Activity: If a foreign NGO has not registered an established representative office but seeks to work on a temporary basis in—or give grants to organizations in—China, the law requires that the NGO file for a temporary activity with the MPS. However, the MPS as yet has not given a formal definition of what type of activity constitutes a “temporary activity.” The new law indicates a maximum duration of one year but also suggests that groups may file for extensions (e.g. for emergencies like disaster relief). It is unclear if short meetings need to be registered.
Chinese Partner Unit: “State organs, mass organizations, public institutions, or social organizations” (Article 16) that foreign NGOs must pair with in order to conduct temporary activities. There is no list or official guidance on approved CPUs.