A recent report in the Japanese news agency Kyodo News looked at a case in which the Chinese Ministry of State Security detained a Japanese woman in 2015 on suspicion of violating the Criminal Code of the People’s Republic of China and the Anti-Espionage Law of the People’s Republic of China as a result of her activities within Japan. According to Kyodo News, the woman learned of the Chinese government’s position on the disputed Senkaku Islands (known in China as the Diaoyu Islands) from officials at the Chinese embassy in Japan during 2012 and 2013 and provided this information to two Japanese government officials in Tokyo. While on a business trip to Shanghai she was taken into custody on suspicion of violating the two laws. While the courts found that the information the woman shared with the Japanese government officials did not contain any Chinese state secrets, she was nevertheless sentenced to six years in prison.
China adopted the Anti-Espionage Law on November 1, 2014, at the 11th Meeting of the Standing Committee of the 12th National People’s Congress, revising the National Security Law that was enacted on February 22, 1993. The law reflects the holistic view of national security that Chinese President Xi Jinping had proposed in April 2014. The Anti-Espionage Law was amended on April 26, 2023 at the 2nd Meeting of the Standing Committee of the 14th National People’s Congress, with the revised law coming into effect on July 1, 2023. The revisions expanded the definition of “acts of espionage” as regulated by the law and strengthened the Ministry of State Security’s authority to investigate acts of espionage.
The Anti-Espionage Law aims to prevent, frustrate, and punish espionage and maintain national security (Article 1). It also stipulates that responsibility for acts of espionage […] by foreign institutions, organizations, or individuals must be legally pursued (Article 10). Where acts of espionage are carried out and a crime is found to have been committed, criminal responsibility is to be pursued in accordance with the Criminal Code. Where acts of espionage do not constitute a crime, administrative responsibility is to be pursued in accordance with the Anti-Espionage Law (Articles 53 and 54).
As such, the scope of application for the Anti-Espionage Law is not limited geographically to Chinese territory but extends to foreign territories. In the case reported by Kyodo News, the law was applied to a Japanese woman sharing information while in Japanese territory.
This application of the Anti-Espionage Law to acts committed outside Chinese territory in itself does not violate international law. It rather constitutes an extraterritorial application of internal laws based on the protective principle under international law. The protective principle is the idea that domestic laws can be applied to crimes that infringe upon the security or existence of the State or other important national or social legal interests, regardless of where the crime was committed or the nationality of the person committing the crime. This principle is widely adopted. For instance, Japan applies the protective principle through Japanese laws such as the Act on the Protection of Specially Designated Secrets.
In the case involving the Japanese woman, China enforced the Anti-Espionage Law within its territory. China monitored the Japanese woman, arrested her, prosecuted her, and tried her in criminal proceedings, which found that she had violated the Criminal Code. The woman was sentenced to prison. The enforcement of Chinese laws within Chinese territory in itself may well be justified, but if China gathered evidence on Japanese territory in an attempt to prove the woman’s acts were espionage, this would be an infringement on Japan’s sovereignty and a violation of international law.
There are other issues related to the enforcement of Chinese law. One in particular stands out. Namely, it is unclear when an act constitutes an act of espionage and is thus punishable under the Anti-Espionage Law.
The law defines one type of act of espionage as activities to steal, pry into, purchase or illegally provide state secrets, intelligence, and other documents, data, materials, or items related to national security (Article 4), yet it is unclear what activities would be considered harmful to national security and interests. For example, even the collection of publicly available documents that do not include state secrets or information would constitute an act of espionage under the Anti-Espionage Law if it were deemed to infringe upon Chinese national interests.
The Anti-Espionage Law’s abstract and ambiguous regulations allow for unpredictable legal assessments of what is defined as an act of espionage, and there are concerns that the Chinese Ministry of State Security will interpret and enforce the law arbitrarily, with ever diminishing restraint in enforcement. With the law being applied outside Chinese territory, this effect would also extend to foreign territories. The extraterritorial application of the Anti-Espionage Law carries with it the potential to infringe on the freedom of various activities guaranteed by the constitutions of foreign countries.
TSURUTA Jun is a professor at the Faculty of Law of Meiji Gakuin University.