China’s Law on Promoting Ethnic Unity and Progress and Extraterritorial Jurisdiction

[Yu-Chen Cheng is a Research Assistant at the Center for International Legal Research, National Chengchi University]

Introduction

The Law on Promoting Ethnic Unity and Progress (official Mandarin text here; unofficial English translation here), adopted by the National People’s Congress of the People’s Republic of China (P.R.C., hereinafter China) in March 2026, entered into force on 1 July 2026. The Law raises two dimensions of legal questions, depending on the location of the targeted individual. For targeted individuals located inside the mainland territory of China, concerns about potential human rights violations of the legislation have been voiced by eight UN Special Rapporteurs. For targeted individuals located outside the mainland territory of China, questions arise as to the legal dimensions of Article 63 of the Law concerning the assertion of extraterritorial jurisdiction.

Article 63 provides:

Organizations and individuals outside the territory of the P.R.C. that commit acts aimed at the P.R.C. that undermine ethnic unity and progress or create ethnic division are to be pursued for legal responsibility in accordance with law.

The Vice Justice Minister of China, at a press conference, defended it as consistent with international practice and every State’s right to legislate against separatism. The Ministry of Foreign Affairs of the Republic of China, Taiwan (hereinafter Taiwan), on the other side of the Strait, condemns the promulgation of the Law, claiming that the exercise of long-arm jurisdiction and transnational suppression violates the sovereignty of other States (including Taiwan) as well as international human rights standards.

This post is dedicated to discussing whether there is a sound legal basis for jurisdiction of this kind, and what questions arise for the host State where the targeted individuals are located.

International Law on Jurisdiction of States

State jurisdiction in general encompasses dimensions of legislation, adjudication, and enforcement; the extent of the competence of States under international law may differ across each of these dimensions. The international law on concurrent prescription of law is comparatively permissive, while enforcement jurisdiction remains territorial and exclusive. This is the same for the arising yet legally controversial trend of international practice: extraterritorial jurisdiction, which includes, inter alia, the exercise of jurisdiction over foreigners in foreign States.

While there is no doubt that the prescription of the law can extend to acts conducted beyond one’s territory, the extraterritorial enforcement of the jurisdiction is generally contrary to international law. As Lotus puts: “[one] may not exercise its power in any form in the territory of another State” unless a permissive rule exists in international law. Thus, even if a State’s legislation concerns conduct abroad, it must wait for the territorial presence of the violator or the property against which the law can be enforced; elsewhere, enforcement abroad without the consent of the host State would be a violation of its territorial sovereignty.

China’s Practice of Extraterritorial Jurisdiction

One example of China’s practice is the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (hereinafter the Hong Kong Security Law) of 2020. Article 38 of the Law provided that it applies to offenses “against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.” The Department of Justice of the Hong Kong Administration seeks to justify the jurisdictional reach of Article 38 based on the “protective principle” of international law, which concerns serious crimes against a State’s own safety, e.g., espionage, counterfeiting, and offenses that threaten a State’s political or military security.

To enforce its extraterritorial legislation, on the other hand, China has established unregistered police stations abroad, attempted forceful repatriation, and sought to utilize bilateral extradition treaties (following the 2020 National Security Law, several Western States suspended their extradition arrangements with Hong Kong) against Chinese citizens and foreigners living abroad. The legality of different acts must be assessed individually.

The Legality of China’s Extraterritorial Legislation

Whereas the protective principle was meant to cover a narrow scope, it has the potential of almost infinite expansion. Thus, the protective principle has been, and continues to be, abused by authoritarian States, as the State seeking to exercise jurisdiction has a broad discretion in interpreting what constitutes a threat against its national security, as opposed to conduct merely contrary to its policies, which the principle does not extend to. While liberal democracies may demonstrate self-restraint by excluding speeches not intended to induce criminal action or violent rebellion, that is not the case for every State. Russia, for example, has been widely criticized for its extreme expansion of protective jurisdiction based on Article 12(3) of its Criminal Code.

A contrast between the Hong Kong Security Law and the Criminal Law of the People’s Republic of China (which speaks of extraterritorial application in Article 8) can be noted. The Criminal Law of China is an interesting example of comparative self-restraint for the invocation of extraterritorial jurisdiction, as it introduced two cumulative prerequisites: one of seriousness (a minimum penalty of three years’ imprisonment) and the other of double-criminality (the act must also be punishable in the State where it was committed). However, it is observed that both limitations are absent in the Hong Kong Security Law; that is the same case for the Law on Promoting Ethnic Unity and Progress.

Reading in conjunction vague descriptions of prohibited acts (e.g., Article 31 of the Law on Promoting Ethnic Unity and Progress speaks of the production or transmission of “information with content that undermines ethnic unity and progress”, while Article 58 criminalizes anyone that “violates the relevant provisions of [the] law and undermines ethnic unity and progress”.) and Article 63 of the Law on Promoting Ethnic Unity and Progress, the effects of the Law would leave foreign nationals unable to know which of their lawful activities abroad China will claim authority to punish.

On the legality of extraterritorial jurisdiction, the contention turns on whether the prohibited acts would exceed the scope of the protective principle, one which may be unclear in the present state of international law. However, even if the extraterritorial legislation of such kind might not be per se illegal in every case, the prescription itself is contrary to, among other human rights concerns, the requirements of clarity and precision of the principle of legality, which as both a custom and a general principle of law, binds China notwithstanding its non-ratification of the ICCPR.

The Legality of China’s Extraterritorial Enforcement

The enforcement of the prescribed law is another question, far less permissive under international law. Any explicit act of law enforcement, which is the exercise of a State’s authority, on foreign soil without consent is a violation of the host State’s territorial sovereignty. It may, additionally, amount to an unlawful intervention where such enforcement is coercive, in effect depriving the host State of control over the matter in question. Furthermore, China’s attempts to disguise its agents as private and civil organizations do not necessarily preclude its international responsibility in this regard. The conduct of these proxies can still be attributable if they act on the instructions or under the direction of China.

Obligations of Host States where Targeted Individuals Locate

Pertaining to Chinese agents operating in the host States to silence criticism, host States are under an obligation to tackle China’s potential enforcement actions. Article 2(1) of the ICCPR has made clear that it applies to “all individuals within its territory and subject to its jurisdiction” irrespective of nationality. On the freedoms of opinion and expression, for example, the Human Rights Committee holds the view in its General Comment No. 15 that this includes aliens’ right to hold opinions and to express them. To respond to the illegal acts carried out by the proxy organizations, the Committee made it clear in General Comment No. 34 that there is a positive obligation on States to protect individuals from acts that would impair the enjoyment of such freedoms.

Looking beyond what is happening in the host States, China may seek to invoke bilateral extradition arrangements with other States to exercise enforcement jurisdiction in a manner consistent with international law. In this regard, not only would difficulties arise from principles (e.g., the double criminality requirement, non-extradition of nationals of the requested countries, and the political offence exception) established in extradition laws and agreements, host States where the targeted individuals locate would also be under international obligations, particularly that of non-refoulement under international human rights law.

Article 3(1) of the Convention against Torture imposes an obligation not to expel, return, or extradite a person to another State where there are “substantial grounds for believing that he would be in danger of being subjected to torture.” A similar obligation of non-refoulement can be seen in Article 3 of the European Convention on Human Rights and applied by the European Court of Human Rights. In Liu v. Poland the Court held that, based on a shifted burden of proof owing to China’s failure to allow international human rights monitoring, Poland could not rely on China’s informal assurances that the applicant’s rights would be respected, given a general situation of torture and ill-treatment in Chinese detention facilities. Because that ill-treatment reflects China’s systemic administrative practice rather than isolated incidents, the refusal of extradition finds an even more legitimate basis.

On the other hand, the Court ruled in M.A. and Others v. Bulgaria that Bulgaria would violate its obligations were it to refoule the Uighur applicants to China, after taking into account materials that show the detention of Uighurs in “re-education camps”, where instances of ill-treatment and torture of the detainees have been reported.

Whereas Liu v. Poland lowered the threshold for invoking non-refoulement in general scenarios, the Law on Promoting Ethnic Unity and Progress, by defining its offenses around ethnic identity and the suppression of ethnic-minority expression, may itself provide evidence that those it targets belong to the very vulnerable groups that are treated as facing a real risk of ill-treatment on return. The Law’s targeting rationale thus consolidates, rather than weakens, the protection its targets may claim before a host State.

Conclusion

The Law on Promoting Ethnic Unity and Progress can be understood as part of a broader pattern of Chinese legal warfare. This law does not necessarily rest its effectiveness on enforcement, but on the chilling effect it produces to deter advocacy of independence from China. Thus, it is more relevant than ever to reiterate the limitations of China’s exercise of extraterritorial jurisdiction under international law, and also to emphasize that there are various obligations for host States where the targeted individuals locate to protect their fundamental human rights.