China’s Ambition of Extraterritorial Jurisdiction and the American Response
In recent years, China has taken several steps to assert extraterritorial jurisdiction over foreign conduct. Fearing a shift in the international legal order, the United States has sought to counter such efforts.
Hong Kong politicians protest against the Hong Kong National Security Law, a bill enacted by China’s National People’s Congress that contains a far-reaching extraterritorial jurisdiction clause. Photo: The Stand News.
By: Staff Member
On January 20, 2021, minutes after the United States inaugurated Joe Biden as its 46th President, China imposed sanctions on a long list of outgoing Trump Administration officials, including former Secretary of State Mike Pompeo. After a lengthy denunciation of these officials’ “prejudice and hatred against China” and their “crazy” attempts to “interfere[] in China’s internal affairs,” China’s foreign ministry banned these officials and their associates from entering China or doing business with China.
The new sanctions add to the rapidly expanding list of Chinese sanctions against U.S. personnel and entities, including several U.S. lawmakers and NGOs. While the affected politicians may have shrugged off the sanctions as mere puffery, the new sanctions are a sign of something quite significant. China’s increasing use of sanctions is part of the country’s grand ambition to enforce its laws outside its own borders.
China’s Latest Attempts to Assert Extraterritorial Jurisdiction
In a new regulation issued by China’s Commerce Ministry just days into 2021, China has effectively forced international companies to choose between complying with the extraterritorial regulations of either the United States or China. For example, a company may now be held liable for damages in Chinese courts for complying with China-related restrictions imposed by the United States, unless that company secures a waiver from the Commerce Ministry.
In the diplomatic arena, China signed an extradition deal with Turkey, a major destination for Uyghurs fleeing repression in Xinjiang. This paves the way for the quick processing of mounting extradition requests by the Chinese government for alleged extremists and perpetrators of terrorism.
And in the area of criminal law, the National People’s Congress passed the controversial Hong Kong National Security Law in the summer of 2020. Article 38 of this law asserts extraterritorial jurisdiction over non-citizens of mainland China and Hong Kong, even if they reside outside their borders. Beijing and Hong Kong sought to exercise this extraterritorial jurisdiction immediately. In the first month after the enactment of Hong Kong National Security Law, the Hong Kong police issued an arrest warrant for Samuel Chu, an American citizen living in the United States, for “collusion with a foreign government,” that is, the U.S. government.
China’s determination to assert extraterritorial jurisdiction parallels other bold claims recently made by Chinese government officials. For example, the Chinese Embassy in the United Kingdom characterized protests in front of the Embassy in London, where Chinese flags were burned, as violations of the Hong Kong National Security Law. In a similar vein, the Chinese National Security Bureau warned the Taiwanese government not to shelter Hong Kong asylum seekers, citing the extraterritorial jurisdiction of the new law.
The Impact of China’s Extraterritorial Ambition
Although it is practically impossible to enforce the new law’s extraterritorial jurisdiction in Western liberal democracies, China’s assertion of its jurisdiction outside of its own borders has cast a chilling effect over people with ties to mainland China or Hong Kong. As evidenced by the recent sentencing of a student for retweeting Winnie the Pooh cartoons in the United States, China is determined to prosecute even trivial extraterritorial claims if the culprit ever sets foot in its territory. In response, many universities in Western countries are taking measures to protect students by making China-related academic discussions anonymous. Some scholars are deeply worried that China’s latest assertion of extraterritorial jurisdiction will further stifle academic freedom and freedom of speech in other parts of the world.
It is also concerning that the world’s authoritarian-leaning countries — China perhaps chief among them — are teaming up to transform the international legal norm from a liberal democratic one towards one that is based on authoritarian international law. This trend is evident in the area of extraterritorial jurisdiction, as authoritarian countries are cooperating with each other to enable the extraterritorial enforcement of domestic laws. For example, after its failure to assert extraterritorial jurisdiction over the controversial religious leader Fethullah Gülen and political dissidents like Enes Kanter, the Erdoğan government in Turkey turned to extraterritorial cooperation with China. The Thai government, which has a long history of controversial assertions of extraterritorial jurisdiction, also has also worked with China to crack down on their respective political dissidents.
The American Response
What might the Biden Administration do to counter this emerging authoritarian coalition and its increasing reliance on extraterritorial jurisdiction?
In 2019 and 2020, the United States responded to the human rights situations in Hong Kong and Xinjiang by enacting the Hong Kong Human Rights and Democracy Act — discussed in an earlier Bulletin post — and the Uyghur Human Rights Policy Act. These enactments outlined a series of sanctions against alleged human rights violators. Although these measures have been criticized as interference in other countries’ internal affairs, such ‘fighting fire with fire’ tactics are likely to increase as the world enters the age of ‘mutually assured interference.’
The good news for President Biden is that the push against China’s authoritarian expansion is rooted in a firm bipartisan consensus. Though China’s strategy is to pin the anti-China policies in recent years on the Trump Administration and court “better angels” in the Biden Administration, China has not yet received the expected positive response. The Biden Administration condemned the sanctions on Pompeo and the other Republican officials as an “unproductive and cynical move” and “an attempt to play to partisan divides.” The Biden team re-affirmed the designation of China’s alleged repression on Uighurs in Xinjiang as “genocide” and, in a move that surely irritated Beijing, invited Taiwan’s de facto ambassador to the inauguration — the first time since 1979 that the Taiwanese representative had received such an invitation.
A proclaimed strategy of the Biden diplomatic team is to rebuild the global alliances neglected by the Trump Administration. The United States’ traditional allies showed solidarity in the campaign to confront China’s ambition of extraterritorial jurisdiction, as countries including the United Kingdom, Germany, France, Canada, Australia, New Zealand, and Ireland suspended their extradition agreements with Hong Kong after the passing of Hong Kong National Security Law. However, as Kurt Campbell, Biden’s diplomatic pick for East Asia, noted, the difficulty to cooperate with allies not only lies in the shaky legitimacy of U.S. leadership in the post-Trump era but also in the economic self-interest of allies. Recently, the European Union rushed into a major bilateral investment agreement with China, despite having paid lip service to the unified transatlantic diplomatic approach with the incoming Biden Administration. China also holds immense diplomatic leverage over the United States in pressing certain international issues in the wake of Trump’s presidency, including the global pandemic response and global climate change policy. As Campbell stated, the United States needs to be “flexible and innovative” in its efforts to maintain the current international order. If traditional allies in Europe hesitate, the Biden Administration should then focus more on strengthening strategic and legal cooperation with Asia-Pacific countries.
In the past few weeks, the legal systems in Thailand and Myanmar in Southeast Asia took a drastic turn towards authoritarianism. As the situation continues to unfold, the Biden Administration has a difficult task: preventing these countries from joining the authoritarian legal sphere of an emergent China, without recklessly interfering in their domestic politics. The future outcome of the Southeast Asian crises could set the tone for the campaign against Chinese legal expansion for decades to come.
The author is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He has previously lived and studied in China.