More FAQs on the Overseas NGO Law: Reading the Fine Print

The more I speak to people about the Overseas NGO Law, the more I realize how much misunderstanding there is about the law. I think it is safe to say that this misunderstanding exists both among NGOs and among the Public Security officials who are charged with implementing this law.

One source of misunderstanding comes from confusion about what different terms mean. Another source comes from the law itself being unclear on some points. This series of FAQs seeks to provide some clarity on these areas.


What is the difference between the Professional Supervisory Unit (PSU) and a Chinese Partner?

As I've written in a previous post, the Law only provides overseas NGOs with two ways to operate in China. One is for the NGO to register a representative office with the provincial Public Security Bureau (PSB). The second, for NGOs that do not need or want to establish an office in China, is for them to "file documents" on their "temporary activities" with the provincial PSB. (It's still unclear how the PSB defines "temporary activities," whether an "activity" can encompass an entire program or project that consists of a set of smaller activities, or whether the NGO needs to file paperwork on each small activity that makes up a larger program or project.)

To register a representative office, an NGO needs to get the approval of a Professional Supervisory Unit (PSU) (or what the official English-language translation calls "organizations in charge of operations") in its main field or area, before it can register with the PSB. In other words, it comes under what the Chinese call a "dual management system" needing to get approval from both the PSU and the PSB.

To "file documents" for "temporary activities," an NGO only needs to find a Chinese Partner who can get the necessary approvals for those activities, and file the necessary paperwork with the PSB.  In theory, this means that the NGO only needs to inform the PSB about its activities, and does not need approval.

Some people have confused the PSU with the Chinese Partner but they are two very different concepts.

The PSU is generally a government agency in the NGO's main field or area. For example, if the NGO mainly works in the commercial or trade area, then it's PSU will most likely be the Commerce Bureau. If the NGO mainly works on environmental issues, then the PSU will most likely be the Environmental Protection Bureau. The PSU also has supervisory authority over the NGO which is required to get approval from the PSU for its operations and send annual work reports to the PSU.
The Ministry of Public Security has just issued a catalogue of the government agencies that are eligible to serve as PSUs for different fields/areas, so NGOs will need to consult that catalogue for the eligible PSUs in their field. However, be aware that just because the government agency is listed in the catalogue does not mean that it is obligated to serve as a PSU.

In contrast to the PSU, the Chinese Partner can come from a much larger pool of organizations. Article 16 of the Overseas NGO Law states that the Chinese Partner can be a government agency, a people's organization (e.g. Women's Federation, Communist Youth League, etc.), public institution (e.g. universities and research institutes), and social organizations (e.g. NGOs). The Chinese Partner also has no supervisory authority over the NGO. The NGO enjoys more of an equal relationship with the Chinese Partner. The Chinese Partner, however, does play an important role in getting the necessary approvals for "temporary activities" and filing the necessary documents with the PSB.


Is there any fine print in the law?

There is no fine print in the law itself, but there are problems with the official English translation, and there are also subtle omissions in the law that require a close reading to understand what the law allows and does not allow.

First of all, anyone working with the official English translation of the law on the Ministry of Public Security website (http://www.mps.gov.cn/n2254314/n2254409/n4904353/c5548987/content.html), should be aware that there some mistakes in the translation.  

One particularly egregious mistake is in the second paragraph of Article 9 of the law. Here's the Chinese original:

境外非政府组织未登记设立代表机构、开展临时活动未经备案的，不得在中国境内开展或者变相开展活动，不得委托、资助或者变相委托、资助中国境内任何单位和个人在中国境内开展活动。

Here's the official translation:

"...Where an overseas NGO has not registered an established representative office, nor submitted documents for the record stating that it intends to carry out temporary activities, it shall not carry out or covertly engage in any activities, nor shall it entrust or finance, or covertly entrust or finance, any organization or individual to carry out activities in the mainland of China on its behalf. "

This translation states that overseas NGOs shall not entrust or finance, or covertly entrust or finance, any organization or individual to carry out activities in mainland China. This suggests that overseas NGOs cannot contract services to, or fund, another organization outside of China to carry out their activities inside China.

Yet the Chinese original is much more narrow. It states that overseas NGOs shall not entrust or finance, or covertly entrust or finance, an organization or individual in mainland China (those last three words were left out of the official translation) to carry out activities within mainland China.


Another problem with the translation occurs in Article 17 which discusses the procedures for NGOs carrying out "temporary activities".  The official translation of the last part of that article reads:

"In emergency situations, such as disaster relief and rescue operations, where an overseas NGO needs to carry out temporary activities in the mainland of China, the time frame for filing records mentioned in the preceding article shall not apply; however, the duration of temporary activities shall not exceed 1 (one) year. Where there is a need to extend this deadline, documentation and information shall be re-submitted for the record."

This translation makes it sound as if the one-year limit for temporary activities applies only for disaster relief activities, but in fact the one-year limit is meant to apply to all temporary activities. The official translation's mistake is to place the phrase (in italics) starting with "however, the duration of temporary activities...." right after the preceding sentence on disaster relief activities, which suggests that this phrase only applies to disaster relief. Yet in the Chinese original, the part about the duration not exceeding one year is set off in a separate paragraph to show that it applies to all “temporary activities”. Here is the correct translation:


"In emergency situations, such as disaster relief and rescue operations, where an overseas NGO needs to carry out temporary activities in the mainland of China, the time frame for filing records mentioned in the preceding article shall not apply." 

The duration of temporary activities shall not exceed 1 (one) year. Where there is a need to extend this deadline, documentation and information shall be re-submitted for the record."


There are also parts of the law where certain changes were made during the drafting process that were not made clear. Two important examples come to mind:

1) Article 10 of the second draft of the law specifically stated that an overseas NGO could register no more than one representative office. In the final version of the law, that was removed, yet there was no language explicitly stating that more than one representative office would be allowed. This question came up in one of the MPS briefings in Shanghai and was clarified by the MPS spokeman. In addition, language allowing more than one representative office was included in the final version of the Guidelines.

2) Article 26 of the second draft of the law stated that overseas NGOs could not fundraise or accept donations in China.  In the final version of the law, the language about accepting donations was removed (see Article 21), but here again no language was inserted stating that overseas NGO could accept donations.


The lesson we can learn from these two examples is that it pays to do a close comparison of the final version of the law with earlier drafts because when changes were made to the draft laws, the intent behind those changes was implied rather than made explicit. The intent only becomes clear when comparisons are made with previous drafts.