Friday, December 30, 2016

The Evolution and Intent of China's Overseas NGO Law

A more recent version of this article was published on ChinaFile,


In March of 2013, Xi Jinping was named the President of the People’s Republic of China at the 12th National People’s Congress (NPC).  At the time, I was working for China Development Brief, an independent Chinese NGO started by the British journalist Nick Young in 1996.

I remember that month well because we were busy preparing for the launch of our directory of independent Chinese NGOs and a report on public advocacy in China. That event was a celebration of the substantial growth in independent civil society organizations over the last decade. It was also a coming out party for CDB which had assumed a low profile after Nick was denied entry back into China in 2007 for reasons that have never been made clear. Nick’s English-language website stopped posting content a short time afterwards. The Chinese CDB team continued to publish a Chinese-language quarterly covering civil society developments in China, but did not issue any new directories or special reports or organize major public events. The last NGO directory CDB had published was a directory of international NGOs in 2005, and before that a directory of Chinese NGOs in 2001.

To promote the new NGO directory and advocacy report, we held a day-long Civil Society Forum in the U.S. Embassy’s American Center. We invited over a hundred representatives from independent Chinese NGOs, foreign NGOs, diplomats, scholars and media, and asked several Chinese NGOs to speak about the significance of the directory and their advocacy experiences in China. 

We were anxious before and during the event because it was taking place 10 days after the close of the NPC session. Generally it’s not a good idea to organize large civil society gatherings in China, let alone in the capital one week after Xi’s coronation. Given the heightened security presence, we encountered difficulties and delays in the printing of the directory. One printing company pulled out when the police showed up unannounced at their office, so we approached a company located further outside Beijing that agreed to publish it. I remember the copies not showing up in our courtyard office until only a few days before our event.

Despite our fears, the Forum was a success. It was standing room only, we did not run out of food, the simultaneous interpreters performed admirably, and the police did not show up. Or if they did, they did not announce their presence.

That spring now seems like a distant memory, much like the week-long blue sky days that appeared over Beijing during the Olympics. Little did we know that two years later, the environment for civil society would change dramatically, that a number of the Chinese NGOs that attended the Forum would be subjected to harassment and detention and some would leave the country for safer havens, and that a draconian law placing foreign NGOs under police supervision would be passed.


Since China opened its doors to the outside world in the late 1970s, thousands of overseas not-for-profit NGOs have carried out programs and activities in China, contributing to China’s development and engagement with the rest of the world. These NGOs run the gamut from trade and commercial groups like the U.S.-China Business Council and European Chamber of Commerce to universities like NYU and Stanford to foundations like Mercator and Ford to performing arts groups like the Philadelphia Symphony to think-tanks like Brookings and Carnegie to sporting associations like the International Olympic Committee and the NBA.

No one really knows how many of these organizations are operating in China, but the numbers are substantial. In 2005, China Development Brief (which also started as an overseas NGO) published the first directory of international NGOs in China listing around 200 selected NGOs. Since then, estimates ranging from 1,000 to 7,000 have been provided by Chinese and foreign scholars that include both overseas NGOs that have an office in China and those carrying out programs and activities in China from their overseas offices[i].   

For many years, the vast majority of these NGOs operated quietly in China in a grey area. Many are unregistered and work in China through local partners, while others are registered as a representative office of a company. That will all change with the passage in April of the Law on Administration of Activities of Overseas NGOs in the Mainland of China (hereafter Overseas NGO Law) which goes into effect on January 1, 2017. The Law is the first comprehensive regulation of its kind covering all overseas NGO activity in China.

The Long Road to Regulating Overseas NGOs

Prior to the Law, the Chinese government had taken halting, incremental steps to regulate foreign NGOs. The first came in April 1989 in the form of the Provisional Regulations for Foreign Chambers of Commerce that allowed chambers of commerce to register with the Ministry of Foreign Economic Relations and Trade (MOFERT). Foreign NGOs that were not chambers of commerce had to wait another 15 years when the 2004 Foundation Management Regulation made its appearance. This regulation was issued by the Ministry of Civil Affairs (MCA), the government agency responsible for regulating “social organizations” (China’s official term for NGOs), and was primarily intended to promote the development of Chinese foundations. Yet it included for the first time language on the registration of representative offices for “overseas foundations”[ii].  Overseas foundations and NGOs were allowed to register a representative office in China under a stringent “dual management system” in which an NGO first needed to get approval from a Professional Supervisory Union (PSU) in a similar field (essentially a government sponsor) before it could register with MCA.

The Foundation Regulation had a very limited impact on overseas NGOs: only a handful succeeded in registering primarily because most were unable to find a PSU. These fortunate few included operational NGOs like the World Wildlife Fund, China Medical Board and World Economic Forum and grant-making foundations like the Bill and Melinda Gates and Li Ka Shing Foundation. By 2015, the number of overseas NGOs that had registered a representative office numbered a mere 29 out of the hundreds of overseas NGOs with offices in China.

In early 2010, as part of a series of local policy experiments intended to improve the regulations of NGOs, the MCA launched a pilot program to register overseas NGOs in Yunnan.  The “Yunnan Province Provisional Regulations Standardizing the Activities of Overseas NGOs,” required overseas NGOs to “file documentation” (bei’an) about all their partners, funding and activities in Yunnan with the provincial Civil Affairs and Foreign Affairs departments. By December 2010, around 140 overseas NGOs had registered under this regulation and by 2013, MCA leaders were touting the Yunnan regulations as a model for national policy. This was also the year when Xi Jinping was anointed President of the PRC and the approach to regulating NGOs suddenly changed.

Xi Jinping’s New Governance Approach

Xi Jinping’s rise to power coincided with a new governance approach that focused on strengthening national security and “governing the country according to law” (yifa zhiguo) as ways to rejuvenate Communist Party rule. Already in the spring and summer of 2013, a major crackdown on activists, lawyers, bloggers and journalists was taking place to head off potential threats to social stability. By the end of 2013, a National Security Commission (NSC) headed by Xi Jinping was established. In early 2014, reports of overseas and Chinese NGOs working in Tibetan areas being closed down began to surface. In April of 2014, the NSC held its first meeting and a month afterwards ordered a national survey of overseas NGOs operating in China. 

During the 2014-16 period, a major anti-corruption drive launched by President Xi gathered momentum along with the repression against NGOs and human rights and labor activists and lawyers. Several foreigners who had been working for Chinese and overseas NGOs were evicted in 2015 for working on improper visas, and in January 2016 a Swedish citizen – Peter Dahlin – appeared on state-run television where he made a forced confession to working for an organization that supported Chinese human rights lawyers. These troubling developments were accompanied by the passage of several new security-oriented laws one after another in 2015 and 2016: the Counterterrorism Law, National Security Law, the Overseas NGO Law and most recently the Cybersecurity Law.

The Overseas NGO Law Surfaces

The first sign of the Overseas NGO Law came in December 2014 with the announcement that the NPC Standing Committee was deliberating the first draft of the law. That announcement caught many observers by surprise. Before this, MCA had been taking the lead on drafting regulations for overseas NGOs, using the Yunnan regulations as the basis for national regulations. In the case of the Overseas NGO Law, a draft of a national law was being proposed, not just a draft of a ministerial regulation like the one in Yunnan. More importantly, the announcement of the draft law was being made by the Vice-Minister of Public Security who stated that the registration and management authority for overseas NGOs would now be vested in the Ministry of Public Security (MPS), not the MCA. He noted that the regulation of overseas NGOs had been raised as an urgent issue at the Third Plenum in October 2013 and the Fourth Plenum in October 2014, and that the MPS had been working with the MCA and other departments as early as April 2014 on researching and drafting the law. The mention of April is significant because it coincides with the first meeting of the National Security Commission and suggests that the decision to make MPS responsible for regulating overseas NGOs was made at that meeting.

The Drafting and Substance of the Law

The first draft of the Overseas NGO Law was not made public, but an English translation quickly circulated. That draft was quite draconian. It gave overseas NGOs only two ways to operate legally in China. One was for the NGO to register a representative office, which required getting approval from a professional supervisory unit (PSU) working in the same field as the NGO, and then applying for registration with provincial Public Security departments. For NGOs that did not want to establish a representative office but only wanted to carry out projects and activities in China, the second option was to register for a “temporary activities” permit lasting one year.  Applying for a permit would also require jumping through a series of hoops, namely getting approval from a PSU, collaborating with a Chinese partner, and then applying for a permit from the relevant Public Security department. The draft law stated that overseas NGOs that did not follow one of these two channels would be operating illegally. 

There are a number of signs that point to a clear national security focus behind the drafting of this law. One was the transfer of registration and management authority from MCA to the MPS. Another was the MPS Vice Minster’s mention of April 2014, the same date as the first meeting of the National Security Commission, as the time when research and drafting on this law began. A third can be found in the language of the draft which has a stronger security emphasis than the Yunnan regulations.

At the same time, parts of the law are influenced by the Yunnan regulations developed by MCA[iii]. It uses the same term “overseas NGO” to refer to “…non-governmental, non-profit or public interest organizations that have been legally established overseas.” It preserves the “dual management” system which requires overseas NGOs to get approval from a PSU, although the PSU plays a somewhat different role in the Yunnan model. It also incorporates a similar “document filing” (bei’an) system for overseas NGOs to report on their activities, partners and funding.

We can also learn something about the law by examining its evolution from the first draft to the final version that was passed by the National People’s Congress in April of 2016. As is the norm, the law went through three drafts before its passage. The second draft, issued in early May of 2015, was the only one publicized to solicit comments from the public.

The revisions made in the later drafts reflect MPS recognition that certain provisions were going to be administratively burdensome, and changed them to streamline the process. The most significant example was the simplification of procedures for NGOs carrying out “temporary activities.” In the first and second drafts, NGOs would first need to get approval from a PSU, and find a Chinese partner to collaborate with. After that, it still needed to apply for a “temporary activities” permit from the relevant Public Security department and wait for their approval. After receiving public comments about the draft, the MPS dropped the requirements for PSU approval and Public Security approval for a permit in the final version of the law, and only required that NGOs work with their Chinese partner to “file documents” about their “temporary activity”. In other words, in the final version of the law, NGOs carrying out “temporary activities” only had to inform the relevant Public Security department about the activities but not wait for approval. 

In other instances, the MPS realized that certain procedures and requirements either overlapped with, or conflicted with, procedures and requirements in other laws and regulations. The first draft, for example, prohibited NGOs from having branch organizations but when it was discovered that some science and technology NGOs already had branch offices, the final version of the law allowed for branch offices “specified by the State Council.” Similarly, the first draft only allowed NGOs to register one representative office in China, but later drafts removed that limit although no language was inserted explicitly stating that NGOs could register more than one representative office.

The MPS also removed articles in the first and second drafts that allowed overseas NGOs to set up domestic NGOs, realizing that this could be used as a loophole giving overseas NGOs a channel for working covertly through these domestic NGOs. Given that domestic NGOs are regulated by MCA through a different set of laws and regulations, these articles would also have raised questions about which ministry would be responsible for supervising these domestic NGOs.

The amount of time it took to get from the first draft to the passage of the law is also telling. It took a total of nearly 16 months, 11 of which were spent digesting the many public comments made to the second draft and preparing a revised draft that was passed by the NPC Standing Committee in late April 2016. In comparison, the Counterrorism Law took 13 months, the National Security Law eight months, the Charity Law six months, and the Cybersecurity Law 15 months. The lengthy drafting process of the Overseas NGO Law was likely a product of several factors: the unfamiliarity of the MPS in regulating such a diverse set of organizations and the challenges it faced in processing the public comments; the need to coordinate with MCA and other relevant agencies on the revisions; concerns about the draft law raised by foreign NGOs, businesses and governments; and perhaps even infighting among agencies and groups with different views on the law.

The Law’s Intent and What NGOs Can Do

Two observations emerge from this examination of the Overseas NGO Law’s emergence and evolution. One is that Xi Jinping’s rise to power and his concerns about China’s security environment was the major driver behind the law’s establishment and timing. The second observation, drawing from the revisions made to the different drafts of the law and the length of time spent in the drafting, is that the law is being taken seriously by Chinese leaders as a governance tool to strengthen “law-based administration” (yifa xingzheng), recognize the role played by overseas NGOs in China’s development, and strengthen their regulation. In this sense, the law can be seen as part of Xi Jinping’s broader “governing the country according to law” (yifa zhiguo) campaign to improve Party discipline and governance over both the Chinese state and society. By strengthening regulation of a group of social actors associated with foreign values and agendas, the law is intended to provide legal channels for those actors to carry out their activities while also better protecting China from external threats. But another intent of the law, I would argue, is to require more transparency and accountability on the part of the implementing authorities, and the MPS in particular. By providing a detailed framework, procedures and responsibilities for regulating overseas NGOs, the law seeks to limit the discretionary power of the MPS even while it expands its administrative authority and resources.

I realize that this last point is not widely shared by many critics of the law who see the law giving the MPS unlimited power over overseas NGOs. While I am not a fan of this law, the critics’ view ignores the fact that Public Security organs and local governments already have the authority to close down many of the overseas NGO projects and offices in China that are unregistered or improperly registered. In 2000, the MCA issued the “Interim Regulations for Banning Illegal NGOs” that provided guidance to local authorities who were unclear about how to deal with unregistered or improperly registered Chinese and overseas NGOs working in their jurisdiction. As Deng Guosheng points out, local authorities were given wide discretion over how to implement this regulation which was much more ambiguous than the Overseas NGO Law[iv]. Over time, an unwritten understanding emerged among authorities to adopt a hands-off approach towards these “illegal” NGOs unless they posed a real threat to social stability or national security.

If the Chinese leadership really wanted to make life difficult for overseas NGOs, all they would need to do is issue a national directive or law to ensure that this regulation was enforced. But that would be like using a cudgel whose appearance would scare away many overseas NGOs. Instead the leadership chose to use a more surgical instrument by creating a law that required overseas NGOs to be transparent about their partners and funding, but also placed limits on the discretionary authority of Public Security and other government agencies. The intended effect, in my view, was not to drive NGOs from China but to corral them into officially-sanctioned areas and away from more sensitive areas working with grassroots NGOs working on rights protection, advocacy, religion, etc. To a large extent, this was also the effect of the Yunnan regulations[v].

Getting the intent of the law right is important because the MPS will be judged on its performance in implementing the law so that it does achieve its intended effect. If the intent of the law is truly to make life difficult for overseas NGOs and encourage them to leave the country, then the MPS has an easy job to do, and there is little that NGOs can do to shape implementation. But if the intent of the law is to ensure that overseas NGOs are able to work legally in officially-sanctioned areas, then the MPS has its work cut out for it and overseas NGOs have some leverage to shape the law’s implementation by monitoring and holding the MPS and other government agencies accountable for implementing and enforcing the law in an effective and impartial manner.

[i] Shawn Shieh and Signe Knutson, Special Report: the Roles and Challenges of International NGOs in China’s Development, China Development Brief (2012),
[iii] Jennifer Hsu and Jessica Teets, “Is China’s New Overseas NGO Management Law Sounding the Death Knell for Civil Society? Maybe Not.” The Asia-Pacific Journal, vol. 14 (February 2016).
[iv] “The ‘Hidden Rules’ Governing China’s Unregistered NGOs: Management and Consequences,” The China Review, vol. 10 (Spring 2010).
[v] Hsu and Teets, “Is China’s New Overseas NGO Management Law Sounding the Death Knell for Civil Society? Maybe Not.”

Wednesday, December 21, 2016

Follow up on the Overseas NGO Law - the list of Professional Supervisory Units has been issued

The Overseas NGO Law passed in April stated that a directory of Professional Supervisory Units (PSUs, 业务主管单位) would be made public. These PSUs (or in the official English-language translation of the Law "organizations in charge of operations") are important for those overseas NGOs that wish to register a representative office, but are not necessary for NGOs that only wish to carry out "temporary activities." In order to register a representative office, the NGO first needs to get the approval of a PSU that is willing to supervise its operations in China.

On December 20, almost eight months after the law was passed, the Ministry of Public Security  released the official directory of PSUs. The Chinese original is available on the Ministry of Public Security's website:

So far, no official English-language translation of the directory or the Guidelines has appeared.

It is interesting looking at the list of PSUs and the list of major fields/projects, how many areas are on the list. The major categories are Economics and Trade, Education, Science and Technology, Culture, Health, Sports, Environmental Protection, Emergency Assistance and Disaster Relief, and Other. Each of these categories has subcategories. Under Other, we find interesting subcategories such as: Legal Services; Women and Gender; Union work (which is limited to union research and exchange); and Social Organization (the official term for nonprofits and NGOs) Research, Exchange and Collaboration.

The list of PSUs is pretty conventional, full of government agencies working in the above major fields. There are also a few mass organizations like the Women's Federation, Disabled Persons Federation and All-China Federation of Trade Unions. I would have liked to see a more expansive list that included universities and research institutes, and it looks like there is room for changes in this directory, as an explanatory note in the directory states that it will be revised in the future.

The critical issue is whether these PSUs will be willing to supervise overseas NGOs. In the past, the difficulty of finding a willing PSU was the main obstacle to overseas NGOs seeking to register a representative office. This was the main reason that, of the hundreds of overseas NGOs that had offices in China, only around 29 were able to register a representative office with the Ministry of Civil Affairs between 2004 to 2016. 

There is no reason to believe that PSUs will be more willing now to supervise NGOs under the new Overseas NGO Law. Just because they are listed in this directory does not mean that they have an obligation to be a PSU. The 29 or so NGOs that have an existing PSU and have already registered a representative office with the Ministry of Civil Affairs will very likely have no problem transferring their registration to the Ministry of Public Security. But for the hundreds of other NGOs, there is no guarantee that they will be able to get the approval of a PSU.

Thursday, December 8, 2016

Foreign Consulates Meet with Public Security officials about the Overseas NGO Law

We are only 24 days away from the Overseas NGO Law going into effect in China, and the only official news we have gotten in the past two months are an October 14 meeting between the Public Security officials with foreign NGOs (mostly business and trade groups) in Shanghai to announce draft Guidelines for the law, a November 8 meeting in Shanghai between Public Security officials and foreign consulates (the subject of this post), and the release of the final official Guidelines.

A summary of the November 8 meeting, the official Guidelines (境外非政府组织代表机构登记和临时活动备案办事指南) in Chinese, and the official English langauge-translation of the Overseas NGO Law are now available on the Ministry of Public Security (MPS) website.  There is so far no official English language translation of the Guidelines, although there is an unofficial translation available on ChinaLawTranslate, and on the WeChat account of FORNGO which bills itself as a center that provides “professional legal services for assisting overseas NGOs with registration of overseas NGO offices, application of filing the record of temporary activities, etc.”.

The remainder of this post is about the November 8 meeting between the MPS and Shanghai PSB and 11 foreign consulates[1] about preparations for the implementation of the Overseas NGO Law.  Several questions were raised at the meeting, particularly (1) whether there would be a "grace period” to give overseas NGOs time to comply with the law, (2) whether NGO representative offices could carry out activities across provinces, and (30 how overseas NGOs with activities in different sectors would determine their professional supervisory units (PSU) or as they are referred to in the Guidelines, business administration departments (BAD).

Before answering these questions, the MPS representative in charge of the Overseas NGO Management office (公安部境外非政府组织管理办公室) made a several statements that were similar to those given at the October 14 meeting.

1) The MPS was giving high-level attention to the work of servicing and managing Overseas NGO and providing efficient and convenient services, and was making intense preparations to ensure that the law would be effectively implemented on January 1, 2017.

2) The coordination mechanism for FNGO supervision and management work had already been established with the MPS and other relevant PSUs participating, to research, coordinate and solve major problems in supervision, management and services for overseas NGOs carrying out activities in China.

3) Provincial Public Security Bureau’s (PSB) Entry/Exit offices were setting up counters for handling registration. In order to provide guidance and help to overseas NGOs seeking to register a representative office or file a record for “temporary activities”, relevant standard documents were being formulated, including the Guidelines for Registration of Overseas NGO Rep Offices and Filing of Records for Temporary Activities 《境外非政府组织代表机构登记和临时活动备案办事指南》, and a Catalogue of Overseas NGO Sectors and Project Areas and Directory of PSUs 《境外非政府组织在中国境内活动领域和项目目录、业务主管单位名录》.

4) An information system and website was being established for overseas NGO management services so that overseas NGOs can go on the website to handle matters and make appointments for registration and filing of records, and apply and submit relevant materials online. Relevant guidance materials would also be published online.

5) The MPS would work together with the Ministry of Civil Affairs (MCA) and State Administration of Industry and Commerce (SAIC) to transfer the registration of those overseas NGO representative offices registered with these two agencies to ensure a smooth transition to the new management framework and protect the legal rights of these overseas NGOs.

This last item refers to the 29 or so overseas NGOs which have managed to register representative offices with the MCA under the 2004 Foundation Management Regulations, and those overseas NGOs that were unable to register representative offices with MCA but were permitted to register representative offices of companies with SAIC.

With regard to the questions posed above, the MPS spokesman provided the following responses.

About the question on the grace period, he replied that "China is a rule of law country, and any laws that go into effect will not have any grace period. When the Overseas NGO Law was passed on April 28, with the aim of going into effect on January 1, 2017, legislative bodies already considered this was a new law and allowed eight months for a preparation period to issue guidelines and catalogues for sectors and projects and a directory of PSUs. He also stated that as soon as the law went into effect, the activities of overseas NGOs and their representatives in mainland China that were registered or recorded would receive legal protection.

Regarding whether overseas NGO representative offices could undertake activities across several provinces, he stated that based on Article 10 and 13 of the Law, FNGOs could set up one or more representative offices in China, and at the time of registration should confirm the geographic area for the activities carried out by that office. A representative office would be allowed to carry out activities across different provinces. For overseas NGO that set up two or more rep offices, the activities of these offices should not overlap or duplicate each other.

Regarding the question of how overseas NGOs that work in different sectors or fields would determine their PSU, he stated that currently they are working on a catalogue of overseas NGO sectors and projects and a directory of PSUs to provide clarification and detail on PSUs in the areas of economy, education, science and tech, culture, health, sports, environmental protection, humanitarian assistance, disaster relief, etc. He noted that “for overseas NGOs working in multiple sectors/fields, the MPS is proposing that overseas NGOs determine its PSU based on their primary or major field of activity. For the overseas NGO's other fields of activity, the main PSU can consult with other relevant departments which should actively cooperate to ensure the management and service work is carried out, and ensure that the overseas NGO is complying with the law in carrying out activities in those issue areas.” 

He did not elaborate on how exactly this proposed arrangement and coordination between the “main PSU” and other relevant departments would work in practice.

In closing, the MPS spokesman emphasized that over the last 30 years of reform and opening, China's economic development and international influence have grown, and overseas NGOs have played a positive role in that process by bringing in projects and funds, diverse ideas, advanced technologies, and valuable experiences. In doing so, they have promoted friendly exchanges between China and other countries, and made a positive contribution to China's economic and social development. China's government continues to welcome and support overseas NGOs to come to China to develop cooperation and exchange programs. The MPS would firmly carry out its work according to the law, carry out its services and management work according to the law, and would work hard to provide assistance and services to overseas NGOs engaged in exchange and cooperation with China.

[1] The U.S., UK, Germany, France, Italy, Japan, Sweden, Netherlands, Poland, Belgium, and Ireland.