Protective jurisdiction is not 'long-arm jurisdiction'

Editor's note: Li Changlin is a professor at the Human Rights Research Institute in the Southwest University of Political Science and Law. The article reflects the author's opinions and not necessarily the views of CGTN.

Article 63 of the Law of the People's Republic of China on Promoting Ethnic Unity and Progress, a fundamental law governing ethnic affairs in China, stipulates that overseas organizations and individuals that undermine China's ethnic unity or engage in acts of ethnic separatism against China shall be held legally accountable in accordance with the law.

Some foreign media have labeled this provision an exercise of "long-arm jurisdiction" or "extraterritorial jurisdiction." Such a characterization confuses two fundamentally different concepts. Protective jurisdiction is a recognized means by which sovereign states safeguard their legitimate interests, whereas the abuse of long-arm jurisdiction by certain countries has become an instrument of unilateralism and hegemonic power.

Protective jurisdiction: A legitimate exercise of sovereignty

Protective jurisdiction refers to a state's authority to apply its laws to acts committed outside its territory that infringe upon the interests of the state, its organizations or its citizens.

This principle is by no means unique to China. It has its roots in two distinct legal traditions: the 19th-century German theory of "state protection," which focused on safeguarding national interests, and the "passive personality principle" reflected in the practice of medieval Italian consular courts, which focused on protecting citizens' interests.

The 1927 Lotus case before the Permanent Court of International Justice affirmed that international law does not, in principle, prohibit a state from exercising jurisdiction outside its territory.

Subsequently, protective jurisdiction has long been recognized in international law and incorporated into the domestic laws of many countries. A number of international treaties and conventions, including those concerning offenses committed on board aircraft, hostage-taking, torture and corruption, recognize forms of protective jurisdiction.

In practice, however, protective jurisdiction does not authorize a state to enforce its laws unilaterally on foreign soil. If an alleged offender does not enter the jurisdiction of the state concerned and the state where the offender is located does not cooperate in extradition, that state cannot unilaterally enforce its laws in the other country's territory, consistent with the principles of non-interference in the internal affairs of other states and the prohibition against law enforcement on foreign territory.

Long-arm jurisdiction: When extraterritorial reach becomes coercive

The modern development of long-arm jurisdiction in the United States was closely associated with the expansion of personal jurisdiction. In the 1945 International Shoe Co. v. Washington ruling, the US Supreme Court established the "minimum contacts" standard, allowing courts to exercise jurisdiction over out-of-state defendants with sufficient connections to the forum state.

Over subsequent decades, the concept was increasingly extended beyond US borders. Through laws such as the Foreign Corrupt Practices Act and the USA PATRIOT Act, US authorities have asserted jurisdiction over foreign companies and individuals based on various connections with the United States, including financial transactions, communications infrastructure or business operations.

The United States has also used export controls, financial sanctions and compelled extraterritorial discovery, including demands for information held overseas, to exercise long-arm jurisdiction.

Long-arm jurisdiction is fundamentally different from protective jurisdiction. By bypassing established channels of international judicial assistance and asserting the primacy of domestic law over the jurisdiction of other sovereign states, such practices can undermine their judicial sovereignty and independence and disrupt the international legal order.

Such practices are manifestations of unilateralism and, when used to suppress competitors and preserve a dominant position, of hegemonism.

Respecting sovereignty

China's modern history has made the importance of sovereignty particularly profound. After experiencing foreign intervention and the erosion of national sovereignty in the 19th and early 20th centuries, China has consistently emphasized independence, sovereignty and non-interference in international relations.

The inclusion of protective jurisdiction in the Law on Promoting Ethnic Unity and Progress reflects China's firm commitment to safeguarding national sovereignty and ethnic unity, and its legal basis and legitimacy are well founded and beyond question.

By falsely labeling the protective jurisdiction provision of the Law on Promoting Ethnic Unity and Progress as "long-arm jurisdiction," some foreign media outlets are, ironically, helping to legitimize the very double standards they claim to oppose.

Foreign media have a responsibility to distinguish between legitimate exercises of sovereign jurisdiction and coercive extraterritorial practices. Rather than reproducing politically charged labels, they should examine the relevant legal principles objectively and respect the sovereignty and judicial independence of states.

Respect for sovereignty, rejection of hegemonic practices and adherence to international law should be the common foundation of a fairer international order.