美中关系中的外交使团法与媒体法

1、The Law of Foreign Missions and Media inU.S.-China RelationsMay 20, 2021The United States and Peoples Republic of China (PRC or China) compete in a variety of legal regimes, ranging from HYPERLINK /english/news_e/news20_e/543r_e.htm multilateral trade bodies, to HYPERLINK https:/2017-2021./determina

2、tion-of-the-secretary-of-state-on-atrocities-in-xinjiang/index.html human rights law, to HYPERLINK /product/pdf/IF/IF10607 international maritime law in the South China Sea. In some contexts, such as HYPERLINK /product/pdf/IF/IF11760 supply chain controls and HYPERLINK /product/pdf/IF/IF11627 export

3、 restrictions, the United States has leveraged legal frameworks in an effort to “ HYPERLINK /product/pdf/R/R46693 decouple” its relations from problematic aspects of Chinas government and economy. In 2020, this strategic separation expanded along a new axis: restrictions on foreign media outlets and

4、 foreign missions in each others territory.According to the HYPERLINK /press-freedom/chinas-media-repression-extends-hong-kong-report-finds Foreign Correspondents Club of China, China revoked or limited more foreignjournalists press credentials in 2020 than at any time since the aftermath of the 198

5、9 HYPERLINK /milestones/1989-1992/tiananmen-square Tiananmen Square HYPERLINK /milestones/1989-1992/tiananmen-square events. Also in 2020, the United States capped the number of staff at some China-based media outlets operating in the United States by designating the outlets as “foreign missions” th

6、at are “substantially owned or effectively controlled” by the PRC. Later that year, the United States and China demandedreciprocal consulate closures and placed tit-for-tat restrictions on diplomatic access in each othersterritory. HYPERLINK /articles/america-china-policy-biden-xi-11617896117?st=al9

7、tlxho7mj1mlk&reflink=article_copyURL_share Media HYPERLINK /article/us-usa-china/china-u-s-to-work-on-climate-beijing-says-after-rancorous-meeting-idUSKBN2BD016 outlets HYPERLINK /article/us-usa-china/china-u-s-to-work-on-climate-beijing-says-after-rancorous-meeting-idUSKBN2BD016 report that, during

8、 the March 2021 HYPERLINK /secretary-antony-j-blinken-national-security-advisor-jake-sullivan-chinese-director-of-the-office-of-the-central-commission-for-foreign-affairs-yang-jiechi-and-chinese-state-councilor-wang-yi-at-th/ meeting between the United States and China in Alaska, PRC officials discu

9、ssed the possibility of reversing these measures as part of a broader proposed plan to improve the HYPERLINK /product/pdf/IF/IF10119 U.S.-China relationship.This Sidebar examines the series of escalating actions concerning foreign media and missions, outlines the legal framework for the measures, an

10、d analyzes their relevance for Congress.Restrictions on JournalistsAlthough restrictions on foreign journalists in China reached new heights in 2020, U.S. media outlets have expressed concern over their ability to report in China for many years. PRC law HYPERLINK /eng/ywzn/mtyw/press_1/t538334.htm r

11、equires resident foreign journalists to have a press card and visiting foreign journalists to possess a short-term journalist visa in order to engage in news coverage and reporting. During the Obama Administration, several U.S. media outlets HYPERLINK /content/pkg/CHRG-113hhrg86658/pdf/CHRG-113hhrg8

12、6658.pdf asserted that China revoked, declined to renew, or shortened the validity of their presscredentials in response to unfavorable coverage about the PRC or its high-level officials. The Foreign Correspondents Club of China HYPERLINK /public/resources/documents/fcccreport201505.pdf reported inc

13、idents in which PRC officials intimidated and harassedCongressional Research ServiceLSB10601CRS Legal SidebarPrepared for Members and Committees of Congressmedia” to obtain a nonimmigrant visa provided, among other conditions, that the applicants homecountry allows reciprocal access to American jour

14、nalists. Historically, the United States allowed foreign journalists to remain on these visas so long as they remained employed and continued to pursue the same professional activity. According to DHS, the new 90-day limitation was necessary to achieve greaterreciprocity between the United States an

15、d China in light of Chinas treatment of American journalists and “ HYPERLINK /content/pkg/FR-2020-05-11/pdf/2020-10090.pdf#page%3D2 suppression” of independent reporting. The next HYPERLINK https:/2017-2021./designation-of-additional-chinese-media-entities-as-foreign-missions/index.html month, the S

16、tate Department HYPERLINK /content/pkg/FR-2020-07-06/pdf/2020-14440.pdf designated the U.S. operations of four more China-based media outletsCCTV, The Peoples Daily, Global Times, and China News Serviceas foreign missions. According to the State Department, the designations were based on the entitie

17、s roles as “ HYPERLINK https:/2017-2021./designation-of-additional-chinese-media-entities-as-foreign-missions/index.html propaganda outlets,” and not driven by the content they produced.After an interlude in mid-2020 when relations pivoted to consulate closures and constraints on diplomats, discusse

18、d below, the focus on foreign journalists resumed in September 2020. That month, U.S. media sites HYPERLINK /2020/09/06/us/politics/china-us-journalists-visas-expulsions.html reported that China delayed renewing expiring press credentials for journalists at CNN, The Wall Street Journal, Bloomberg Ne

19、ws, and Getty Images. The next month, the United States designated six more Chinese outlets as foreign missions: HYPERLINK /content/pkg/FR-2020-10-30/pdf/2020-24085.pdf Yicai Global (also known as China Business Network), HYPERLINK /content/pkg/FR-2020-10-30/pdf/2020-24082.pdf Jiefang HYPERLINK /con

20、tent/pkg/FR-2020-10-30/pdf/2020-24082.pdf Daily, HYPERLINK /content/pkg/FR-2020-10-30/pdf/2020-24086.pdf Xinmin Evening News, HYPERLINK /content/pkg/FR-2020-10-30/pdf/2020-24091.pdf Social Sciences in China Press, HYPERLINK /content/pkg/FR-2020-10-30/pdf/2020-24089.pdf Beijing Review, and HYPERLINK

21、/content/pkg/FR-2020-10-30/pdf/2020-24083.pdf Economic Daily. The State Department described the entities as “ HYPERLINK https:/2017-2021./designation-of-additional-prc-propaganda-outlets-as-foreign-missions/index.html state-backed propaganda outlets” disguised as independent news agencies. In May 2

22、021, the North American subsidiary of Xinhua News Agency (Xinhua)the HYPERLINK /topic/Xinhua-News-Agency press outlet of the Communist Party of China HYPERLINK /docs/6958-Exhibit-AB-20210505-1.pdf registered as a foreign agent under FARA. DOJ haddirected Xinhuas North American arm to register in 202

23、0, HYPERLINK https:/t.co/k2ODzd7r0o?amp=1 reasoning that the outlet seeks to influence the American publics perception of China and publishes stories that “promote only one viewpointthat of the PRC.”Foreign Missions and the First AmendmentSome HYPERLINK /a/202003/06/WS5e61ea9ea31012821727cf40.html o

24、bservers in Chinas HYPERLINK /content/1191842.shtml media and HYPERLINK /mfa_eng/xwfw_665399/s2510_665401/t1825949.shtml government argue that the United States foreign missions designations undermine HYPERLINK /browse/essay/amdt1-2-1/ALDE_00000393/ First Amendment freedoms of the China-based media

25、companies. StateDepartment officials HYPERLINK https:/2017-2021./designation-of-additional-chinese-media-entities-as-foreign-missions/index.html counter that the designations increase transparency of the outlets operations, and do not restrict the content of their reporting or limit what they can pu

26、blish in the United States. In addition, at least one U.S. court in 1988 rejected a First Amendment challenge to a foreign mission designation. In HYPERLINK /cases/federal/appellate-courts/F2/853/932/121422/ Palestine Information Office v. Shultz, the U.S. Court of Appeals for the District of Columb

27、ia Circuit (D.C. Circuit) held that the State Department did not violate the First Amendments guarantees of free speech and free association when it designated the Palestine Information Office in Washington D.C. as a foreign mission and demanded the offices closure. The Shultz court reasoned that th

28、e executive branch was operating at the “apex” of its powers when acting in the field of foreign affairs and under expresscongressional authorization in the Foreign Missions Act. The court concluded that the designation followed First Amendment standards because: (1) the State Department had constit

29、utional and statutory authority; (2) regulating foreign missions advanced an “important government interest;” (3) the designation was “unrelated to the suppression of free expression;” (4) and the measures were “no greater than essential” to further the governments interest.Reciprocal Consulate Clos

30、ures and Restrictions on DiplomatsIn the summer of 2020, U.S.-China relations advanced to a different legal front when the two countries made reciprocal demands for consulate closures and limited diplomats access in each others territory.The international legal regime governing consular relations la

31、rgely is set forth in internationalagreements, to which the United States and China are parties, including the Vienna Convention on Consular Relations ( HYPERLINK /doc/Treaties/1967/06/19670608%2010-36%20AM/Ch_III_6p.pdf VCCR) and a HYPERLINK /content/travel/en/legal/travel-legal-considerations/intl

32、-treaties/Bilateral-Consular-Conventions/Chinese-Treaty.html 1980 bilateral Consular Convention. These treaties require consular officials to observe the domestic law of the country in which they are located and to refrain frominterfering with the countrys “internal affairs.” At the same time, a bre

33、ach of these obligations or any other treaty provision is not a prerequisite to a countrys demand for a consulate closure. Rather, thetreaties contemplate that consular relations, offices, and personnel must be established based on mutual consent, and that a country can withdraw that consent. Accord

34、ingly, consulate closures and othernarrowing of diplomatic relations often fall into the category of HYPERLINK /Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190&apge=1152 retorsionsacts that are “ HYPERLINK /ilc/texts/instr

35、uments/english/commentaries/9_6_2001.pdf#page%3D99 unfriendly” but do not violate international lawrather than countermeasures or breaches of international law.In July 2020, the United States withdrew its consent for China to operate its consulate in Houston, Texas. Former Secretary of State Michael

36、 R. Pompeo HYPERLINK https:/2017-2021./communist-china-and-the-free-worlds-future-2/index.html described the Houston consulate as a “hub of spying and intellectual property theft,” and executive branch officials HYPERLINK https:/2017-2021./briefing-with-senior-u-s-government-officials-on-the-closure

37、-of-the-chinese-consulate-in-houston-texas/index.html#post-169474-footnote-ref-1 stated that China used the consular premisesand officials to support grant fraud, trade secret theft, and other activities that violate U.S. law and threaten national security. China HYPERLINK /mfa_eng/zxxx_662805/t1801

38、807.shtml denies those allegations. Later that week, China HYPERLINK /mfa_eng/zxxx_662805/t1800369.shtml instructed the United States to close its consulate in Chengdu (located in southwestern China) in what its Foreign Ministry officials HYPERLINK /mfa_eng/xwfw_665399/s2510_665401/t1801240.shtml de

39、scribed as a response to the Houston closure.In September 2020, former Secretary Pompeo HYPERLINK https:/2017-2021./secretary-michael-r-pompeo-at-a-press-availability-12/index.html announced that senior PRC diplomats in the United States would be required to obtain the State Departments approval bef

40、ore visiting university campuses, meeting with state and local government officials, or hosting cultural events with more than 50 people outside Chinas embassy and consular premises in the United States. American diplomats have long HYPERLINK /system/files/isp-i-18-04_0.pdf#page%3D11 reported that t

41、he PRC requires advance approval for similar activities in mainland China and that Chinas Foreign Ministry often denies permission. The Foreign Missions Act authorizes the Secretary of State to afford foreign diplomats the same “ HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section4304&n

42、um=0&edition=prelim benefits” that their countries provide to American diplomats abroad. The State Department treats HYPERLINK /FAM/01FAM/01FAM0220.html#M228_8 domestic travel as a benefit, and it places travel restrictions on diplomats from HYPERLINK /foreign-missions-travel-controls-program/ selec

43、t foreign countries that are designed to mirror restrictions U.S. diplomats face in those nations.Secretary Pompeo HYPERLINK https:/2017-2021./secretary-michael-r-pompeo-at-a-press-availability-12/index.html described the September 2020 policy as intending to attain such reciprocity.The United State

44、s argues that the PRC limited American diplomats movement and access in China well before 2020, and that it implemented the recent measures to “ HYPERLINK https:/2017-2021./briefing-with-senior-state-department-officials-on-reciprocal-action-regarding-chinese-diplomats-in-the-united-states/index.htm

45、l level the playing field” rather than obtain a diplomatic advantage. In a 1980 legal opinion, DOJs Office of Legal Counsel (OLC) HYPERLINK /file/22346/download#page%3D3 interpretsinternational law to permit the United States to respond to a country that imposes restrictive travel zones on U.S. dipl

46、omats by imposing reciprocal restrictions on that countrys diplomats inside the United States as long as the restrictions do not contravene the Vienna Convention on Diplomatic Relations ( HYPERLINK /ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR).OLCs interpretation focuses largely on H

47、YPERLINK /ilc/texts/instruments/english/conventions/9_1_1961.pdf#page%3D15 Article 47 of the VCDR, which allows a country to“discriminate” against another state by applying the VCDRs provisions in a “restrictive” manner inresponse to another partys prior restrictive application. This provision incor

48、porates a “ HYPERLINK /ilc/texts/instruments/english/commentaries/9_1_1958.pdf#page%3D18 rule of reciprocity” that applies in all diplomatic relations, according to the HYPERLINK /ilc/ International Law Commission, a U.N.-based body that prepared the early drafts of the VCDR.The day after the Secret

49、arys September 2020 announcement, Chinas Ministry of Foreign Affairs HYPERLINK /mfa_eng/xwfw_665399/s2510_665401/t1812001.shtml responded that the travel restrictions violated the VCCR, the 1980 bilateral Consular Convention, and the VCDR. PRC officials did not specify which treaty provisions they b

50、elieve the United States breached, but restrictions on diplomats access can implicate HYPERLINK /doc/Treaties/1967/06/19670608%2010-36%20AM/Ch_III_6p.pdf#page%3D28 provisions that afford diplomats “ HYPERLINK /ilc/texts/instruments/english/conventions/9_1_1961.pdf#page%3D8 freedom of movement HYPERL

51、INK /ilc/texts/instruments/english/conventions/9_1_1961.pdf#page%3D8 and travel” outside of restricted national security zones. China later responded to the State Departments measures by formally announcing HYPERLINK /mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1814219.shtml reciprocal restriction

52、s on U.S. diplomats in mainland China andexpanding those restrictions to American diplomats in Hong Kong.Congressional Interest and ConsiderationsSome Members of recent Congresses have introduced legislation that would influence foreign missions and media access in U.S.-China relations. In the 117th

53、 Congress, the Strategic Competition Act of 2021( HYPERLINK /cgi-lis/bdquery/z?d117%3AS.1169 S. 1169) would require the U.S, Agency for Global Media (discussed in this HYPERLINK /product/pdf/IN/IN11365 CRS Insight) to take steps to counter the HYPERLINK /2021/05/09/business/media/china-beijing-coron

54、avirus-media.html international influence of Chinas state-controlled media outlets. In the 116th Congress, the World Press Protection and Reciprocity Act ( HYPERLINK /cgi-lis/bdquery/z?d116%3AS.3818 S. 3818, HYPERLINK /cgi-lis/bdquery/z?d116%3AH.R.7001 H.R. 7001) would have required the President to

55、create a plan to enhance reciprocity and global access for U.S. news outlets. The Chinese-Backed MediaAccountability Act in the 116th Congress ( HYPERLINK /cgi-lis/bdquery/z?d116%3AS.4797 S. 4797) would have required the State Departments Bureau of Consular Affairs to ensure that the United States d

56、oes not issue more of certain categories of visas to journalists from “Chinese state-run media organizations” than China issues to journalists from the United States. The Chinese Media Reciprocity Act of 2011 in the 112th Congress ( HYPERLINK /cgi-lis/bdquery/z?d112%3AH.R.2899 H.R. 2899) would have

57、limited HYPERLINK /content/travel/en/us-visas/employment/visas-members-foreign-media-press-radio.html foreign media visas for “state-controlled media workers” from China to the same number of visas the PRC issues to U.S. employees of the HYPERLINK /product/pdf/R/R43521 Broadcasting Board of Governor

58、s, such as Voice of America andRadio Free Asia.Should Congress seek to control directly consulate closures and diplomatic movement, it may faceconstitutional constraints. The Constitution vests the President with what the Supreme Court describes as the “ HYPERLINK /cases/federal/us/539/396/#tab-opin

59、ion-1961295 vast share of responsibility” to conduct foreign relations. In HYPERLINK /product/pdf/LSB/LSB10600 OLCs view, the President has“ HYPERLINK /olc/file/1348136/download#page%3D11 exclusive authority to conduct diplomacy” for the United States, and any legislation that interferes with the Pr

60、esidents power to determine the “ HYPERLINK /sites/default/files/olc/opinions/2009/06/31/section7054.pdf#page%3D4 form and manner” in which the United States maintains diplomatic relations is unconstitutional. At the same time, the Supreme Court has never held that the President has complete control