China's counter-sanctions law faces two problems, namely, insufficient legitimacy at the level of international law and insufficient coordination of the counter-sanctions legal system. Solving the problems faced by counter-sanctions laws through the path of generalizing national security has the defects of possible failure, legal loopholes, and possible foreign-related legal risks. Anti-sanctions laws face the dilemma of whether to generalize national security. The extra-legal factor causing the legal dilemma of counter-sanctions is the generalization of the concept of national security, and the intra-legal factor is the unclear concept of the national security law. By identifying the concepts of national security and national security law in the context of the overall national security concept, it can be seen that the plan to generalize national security is not legally feasible. The issue of the coordination of the legal system of counter-sanctions cannot be resolved for the time being, and the issue of the legality of counter-sanctions measures at the international law level can be achieved by distinguishing between the "national security" clause and the "non-national security" clause in the counter-sanctions law.
While promoting the development of human society, scientific and technological progress has brought many unpredictable risks, and human society has entered the era of risk society, which needs to continuously expand the scope of security. In recent years, non-traditional security issues such as terrorism, transnational crimes, public health crises, cyber security issues, and ecological security issues have been widely incorporated into the national security issues of various countries. In order to adapt to the changes in the security situation, China's national security concept has been constantly adjusted, from a traditional security concept to a new security concept that includes non-traditional security issues, and then to an overall national security concept that further expands the scope of national security and emphasizes overall planning and coordination. National security is becoming more generalized around the world.
China has established a legal system for counter-sanctions, including the Anti-Foreign Sanctions Law, the Measures for Blocking the Improper Extraterritorial Application of Foreign Laws and Measures, the Provisions on the Unreliable Entity List, the Export Control Regulations, and the Foreign Trade and Economic Cooperation Law, to safeguard the country's core interests through legal means. These laws have enriched China's legal toolbox for safeguarding the country's core interests, but there are also some problems, such as insufficient coordination between different laws and regulations, insufficient legitimacy in international law, and some laws that are difficult to deal with non-traditional national security issues. In response to these problems of counter-sanctions law, some scholars have adopted a generalized approach to national security to provide solutions to the problems of counter-sanctions law, such as citing the broader concept of "national security" in the national security law to expand the interpretation of articles 17 and 27 of the foreign trade and economic cooperation law, which are limited to the traditional security category, and using the "national security exception" clause of GATT 21 to provide international legitimacy for the implementation of countermeasures. Such a solution not only better interprets the anti-sanctions law and gives full play to the effectiveness of the anti-sanctions law, but also promotes the trend of generalization of national security.
In the context of China's establishment of a national security rule of law system, the generalization of national security is not necessarily a good thing, and may lead to the abuse of state power and affect the normal order of national governance. Therefore, it is necessary to sort out the problems existing in the anti-sanctions legal system, find out the reasons for them, and find out the plan to improve the anti-sanctions law on the premise of avoiding the generalization of national security.
First, the dilemma of anti-sanctions laws and the inadequacy of the current program
(1) The dilemma of anti-sanctions laws under the wave of national security generalization
1. The question of legitimacy in international law
In nature, China's counter-sanctions are a type of sanction measures, which may infringe on the sovereignty of other countries and interfere in the internal affairs of other countries, and may violate obligations under international law.
First, there is the question of legitimacy arising from the nature of counter-sanctions. The counter-sanctions measures stipulated in China's counter-sanctions law are not authorized multilateral sanctions under multilateral international treaty mechanisms, but unilateral sanctions, and therefore have no legitimacy. Professor Huo Zhengxin believes that in contemporary international law, multilateral sanctions can be defined as a decision by a country or multiple countries or groups of countries to adopt economic, trade or other coercive measures within the scope of a multilateral international treaty mechanism under the explicit authorization of the mechanism to achieve the purpose of forcing a member state to change its policy. Unilateral sanctions, on the other hand, refer to the decision of a country or multiple countries or groups of countries to adopt economic, trade or other coercive measures on their own initiative without the authorization of multilateral international treaty mechanisms to achieve the goal of forcing a country to change its policy. There is a difference in legality between the two, because the former has been authorized by an international organization, which has been authorized and consented to by the sanctioned State in the constitution of the international organization and therefore has legitimacy, while the latter lacks the consent of the sanctioned State. From a practical point of view, China's counter-sanctions measures are unilateral sanctions imposed on its own initiative against the illegal acts of other countries, without the consent of other countries and authorized by international organizations, and thus lack legitimacy.
Second, a country cannot rely on domestic law as a basis to circumvent its obligations under international law, and counter-sanctions measures may lead to a breach of the obligations under international law by the implementing state, so the basis of domestic law cannot solve the issue of legality of counter-sanctions measures at the international law level. The principle that a State cannot rely on its domestic law to circumvent its obligations under international law derives from the good faith performance of its international obligations was recognized in the 1932 Permanent Court of International Justice Advisory Opinion on the Polish Nationals in Danzig, in the Preamble to the Charter of the United Nations, articles 13 and 14 of the Draft Declaration on the Rights and Duties of States, and article 27 of the Vienna Convention on the Law of Treaties. Therefore, China's counter-sanctions measures cannot be based on domestic counter-sanctions laws to circumvent the legitimacy issues under international law that may arise from violations of international law responsibilities.
Thirdly, the legitimacy of counter-sanctions measures under international law cannot be determined. First, according to the "Lotus Principle", China's counter-sanctions measures are not necessarily illegal. The "Lotus Principle", or "the principle that if it is not prohibited by international law, it is permissible", was established by the Permanent Court of International Justice in the Lotus case in 1927, which held that the conduct of sovereign states in the international community is autonomous and that their conduct is unlawful only if it is prohibited by international treaties and customary international law. According to this principle, unilateral sanctions imposed by sovereign States are not unlawful, as long as they are not contrary to international treaties and customary national law. Second, if China's counter-sanctions meet the requirements of international law, they are legitimate. According to the Draft Articles on State Responsibility, the State carrying out countermeasures was exempt from international responsibility as long as they complied with the procedural and substantive requirements set out in the draft. Professor Huo Zhengxin believes that the counter-sanctions measures stipulated in the Anti-Foreign Sanctions Law basically meet the requirements of the Draft Articles on State Responsibility for countermeasures, but the procedural requirements for notifying the responsible state need to be improved, and whether they meet the requirements of the principle of proportionality needs to be examined in specific implementation.
Since the counter-sanctions measures stipulated in China's counter-sanctions laws may not meet the requirements of countermeasures under international law, and domestic laws are powerless in this regard, China's counter-sanctions measures are insufficient in terms of legitimacy at the level of international law. Therefore, some scholars believe that the "national security exception" clause commonly set up in international economic and trade law should be used as the basis for legitimacy.
2. The issue of "good law" in domestic law
(1) Insufficient coordination of different laws and regulations
In order to deal with the legal warfare characterized by the generalization of national security, China has successively promulgated the Provisions on the Unreliable Entity List, the Blocking Procedures, and the Anti-Foreign Sanctions Law, drawing on the legislative experience of other countries, and established the Entity List System, the Blocking System, and the Anti-Sanctions System. Since China's anti-sanctions laws have borrowed a lot from the legislation of other countries, the problem of adaptation of laws has led to insufficient coordination between anti-sanctions laws and norms. The comparison of the application scenarios, ratione materiae scope, personal scope of application, countermeasure subjects, core systems and countermeasures of the three regulations is as follows:
Comparison chart of the Anti-Foreign Sanctions Law, the Blocking Rules, and the Unreliable Entity List Provisions
Through comparison, it can be found that there is a lack of effective cohesion and coordination between the three laws and regulations and the counter-sanctions regimes established by them. There is overlap in the application scenarios of the three regulations, but the scope of application ratione materiae and the scope of application ratione personae lack the compatibility of the relationship between the subordinate and the subordinate or the coordination of the horizontal relationship, and the countermeasures are not exactly the same, so there may be conflicts between the three systems in operation, and there is a lack of subjects that can be effectively coordinated.
There is a certain basis for classifying the counter-sanctions law as a national security law, and coordinating the counter-sanctions system, the blocking system, and the entity list system under the national security system. First, the Anti-Foreign Sanctions Law, the Blocking Procedures, and the Provisions on the Unreliable Entity List all clearly stipulate in Article 1 that their legislative purposes are to "safeguard national sovereignty, security and development interests", which can be understood as the purpose of legislation is to safeguard national sovereignty, national security and national development interests, and legal norms aimed at safeguarding national security can naturally be classified as national security laws. Second, the national security regime provided for in the 2015 National Security Law is similar to the counter-sanctions regime, for example, the "review and supervision" system provided for in Articles 59 to 61 of the 2015 National Security Law is similar to the review procedure in the counter-sanctions regime.
(2) The scope of national security in individual articles is too narrow
The provisions that are still limited to the traditional national security category and are difficult to deal with the generalized legal battles of national security are mainly in the Foreign Trade Law. Articles 16, 17, 26, 27 and 37 of the Foreign Trade Law stipulate that the government may impose restrictions or prohibitions on the import or export of relevant goods and technologies, restrict or prohibit measures related to international trade in services, or conduct investigations on national security grounds, but the Foreign Trade Law does not explicitly stipulate the concept of "national security", nor does it stipulate the relationship between the law and the 2015 version of the National Security Law. Articles 17 and 27 of the FTL are consistent with the "national security exception" clause in GATT 21, which limits the scope of national security to "goods and technologies related to fissile or fusion materials or derived from such substances" and "related to weapons, ammunition or other military materiel" and "wartime" by way of example. In the WTO "Russian Border Passage Measures" case, the expert group held that the "national security" in Article 21 of the GATT1947 should be limited to the field of military security and political security. Professor Hu Xiaohong believes that the overall national security concept in Article 3 of the National Security Law should be cited to interpret and revise the concept of "national security" in the Foreign Trade Law, so as to solve the problem that the scope of "national security" in the law is too narrow to deal with non-traditional national security risks.
(2) The issue of the national security generalization plan
Faced with the challenges brought about by the generalization of national security, scholars have chosen to deal with it in the same way as the generalization of national security. The dilemma of anti-sanctions laws can be alleviated to a certain extent by generalizing the concept of national security, but there are loopholes and new problems will arise.
First, there is a possibility of failure in the scheme of using the "national security exception" clause in international economic and trade law as the basis for the legitimacy of counter-sanctions measures. Most of the "national security exception" clauses in international economic and trade law are modeled on or copied from Article 21 of the GATT1947, and the first and second paragraphs of paragraph 2 of the article limit national security to the scope of traditional security. In order to use the "national security exception" clause as the basis for the legitimacy of China's counter-sanctions against other countries in the field of economic security, it is necessary to expand the interpretation of "national security" in this clause from the field of political security and military security to the field of economic security. However, according to the existing international judicial practice, it is difficult for the arbitral tribunal to support the generalization of the concept of "national security" in this article.
Second, there are loopholes in the legal rationale of the scheme to classify the anti-sanctions law as a national security law. First, there is ambiguity in legal interpretation of the meaning of "safeguarding national sovereignty, security and development interests", which can be interpreted as "safeguarding national sovereignty, national security and national development interests" or "safeguarding national core interests", which is not equal to national security. Second, the 2015 version of the National Security Law and the Anti-Foreign Sanctions Law are both laws enacted by the Standing Committee of the National People's Congress, and the National Security Law is not a superior law to the Anti-Foreign Sanctions Law. Third, the 2015 version of the National Security Law can only provide a higher-level legal basis for the rules in the Blocking Measures and the Provisions on the Unreliable Entity List that trigger the review process for national security reasons, but cannot provide a higher-level legal basis for the rules that initiate the review process or other procedures for non-national security reasons.
Third, the expansion of the concept of "national security" in the Foreign Trade Law may create problems at the legal level of foreign affairs. As mentioned above, the practice of international judicial adjudication basically does not support the extension of the scope of application of the "national security exception" clause to non-traditional security fields, and the expanded interpretation of the concept of "national security" in foreign trade law may not be recognized by international law, while domestic laws that do not have legitimacy at the level of international law are difficult to be recognized by other countries in foreign-related affairs and cannot play a practical role.
Although the anti-sanctions law is difficult to deal with the legal battle of national security generalization, although dealing with national security generalization can play a certain role in alleviating national security, it cannot get out of the predicament and will also lead to new problems. China's legal dilemma in anti-sanctions can be summarized as a security dilemma under the wave of national security generalization. The "security dilemma" in international relations theory refers to "a situation in which you have a realistic fear of other countries, and other countries will have the same fear of you." Maybe you have no intention of harming other countries at all, and you are just doing ordinary things, but you cannot make them fully aware of your intentions. You can't understand why other countries are so neurotic, and vice versa. In such a situation, both sides perceive the other as hostile and irrational, and refuse to give assurances that will ensure the security of all. The escalation of the arms race is a product of this state of affairs. "In a security dilemma, the state has two options: to strengthen itself or to weaken it. Increasing one's own strength may create an effective deterrent to other countries and make them less hostile, or it may provoke other countries and increase their hostility. Weakening one's own power may make others believe in their good intentions and reduce their hostility, or it may induce others to become more hostile to oneself. Both options are a dilemma as they risk increasing or reducing hostility on the part of other countries and worsening their own security environment. China is caught in a security dilemma in its counter-sanctions laws: broadening the concept of national security can enhance its security capabilities, but it risks increasing the hostility of other countries and destabilizing the legal order, or restricting the scope of the concept of national security to show weakness and goodwill, but may lure other countries to tighten sanctions and force itself to make concessions and more insecure.
II. Reasons for the legal dilemma of counter-sanctions
China's security dilemma in anti-sanctions law arises for extralegal reasons, as well as for the problems in the construction of China's national security legal system. The extralegal reasons include the generalization of security in the era of risk society, and the ubiquity of risk makes it easier for governments and citizens to accept the expansion of the State's power in security matters. At the same time, China's national security legal system is not well constructed, leaving loopholes for the broad interpretation of the concept of national security in law and the generalization of the concept of national security law.
(1) Security generalization in a risk society
In the era of risk society, non-traditional security has increasingly entered the category of national security. Risk society refers to the development and large-scale application of science and technology, there are more and more unpredictable and serious security risks in human society, such as large-scale infectious diseases, environmental damage, extreme weather caused by global warming, etc. With the general acceptance of the concept of risk society, human activities such as terrorist attacks, transnational crimes, and piracy have also been included in the scope of risk society, and together with environmental risks caused by science and technology, they are classified as non-traditional security risks that are different from military security and political security. The increase in non-traditional security risks has led to a growing sense of insecurity and a willingness to accept the expansion of state power and further restrictions on civil liberties. At the same time, non-traditional security issues continue to stimulate people's nerves, and issues such as economic security, scientific and technological security, cyber security, terrorist attacks, and transnational crimes are constantly included in the scope of national security. In the context of the overall national security concept, the national security system covers 11 areas: homeland security, economic security, scientific and technological security, cultural security, social security, ecological security, military security, cyber, artificial intelligence, data security, nuclear security, biological, space, deep-sea, polar security, and overseas interest security.
(2) The scope of the National Security Law is unclear
The definition of the concept of "national security" in the National Security Law is very broad, and the ontological research of national security law is insufficient, resulting in the lack of the concept of "national security law" that accurately defines national security law, which leaves a theoretical loophole in the generalization of national security and national security law in the anti-sanctions law. Article 2 of the National Security Law defines national security as "national security refers to the state power, sovereignty, unity and territorial integrity, people's well-being, sustainable economic and social development and other major national interests in a state that is relatively free from danger and internal and external threats, as well as the ability to ensure a sustained state of security". According to this definition, there are two constituent elements of national security: the core interests and major interests of the State; However, expressions such as "state power, sovereignty, unity and territorial integrity, people's empowerment, and sustainable economic and social development" are too general and vague, and it is difficult to determine their specific connotations.
Scholars have also taken a broader approach to the definition of national security law, and most of them define national security law as "law related to national security". Jia Yu and Shu Honghong believe that the National Security Law is divided into broad and narrow senses, the national security law in the narrow sense refers specifically to the national security law, and the national security law in the broad sense refers to the sum of all laws and norms related to safeguarding national security. Li Zhong, Li Zhu, Xiao Junyong, Zhou Yezhong, Pang Yuanfu and others did not directly define the national security law, but defined the national security legal system in terms of content and legal rank. Li Zhong divided the national security legal system into three levels: the Constitution, special legislation, and some laws related to national security. Li Zhu and Xiao Junyong defined the national security legal system as an institutional system based on the relevant provisions of the Constitution, with the National Security Law as the core, including national security laws, administrative regulations, local regulations, departmental rules, local government regulations and other normative categories. Zhou Yezhong and Pang Yuanfu defined the national security legal system as a four-level system structure of "constitutional provisions related to national security + basic law on national security + special legislation in specific areas of national security + provisions on national security scattered in various departmental laws or separate laws". This method of definition temporarily avoids the trouble of defining national security, and is conducive to promoting the practice and research of the rule of law from the specific field of national security, but it also leaves a loophole in the generalization of national security.
The broad definition of the concept leads to the unclear and indefinite expansion of the scope of the national security law, which creates a broad criterion for judging the national security law: national security and national interests are included in the legal provisions, or the matters regulated are related to national security or national interests although the provisions do not contain national security and national interests. Under this definition, the Food Safety Law, the Traffic Safety Law, the Work Safety Law, and even the Regulations on the Protection of Paleontological Fossils and the Regulations on the Protection of Famous Historical and Cultural Cities, Towns and Villages are all classified as national security laws.
In summary, the dilemma of anti-sanctions laws is caused by both external and internal factors. In terms of external factors, the increasing number of unpredictable risks in the risk society has driven the generalization of security and national security. In terms of internal factors, the concept of national security law is not precisely defined in the legal provisions and in the interpretation of doctrine. The combination of internal and external factors has led to the increasing number of legal battles for the generalization of national security in China, and at the same time, it has also left loopholes for the generalization of national security in Chinese law. At this stage, it is not possible to change the dilemma of the anti-sanctions law from the side of external factors. From the perspective of internal factors, it is necessary to define a more precise scope of national security law to avoid the generalization of national security in the anti-sanctions law. The scope of the National Security Law depends on the definition of the concept of national security under the overall concept of national security, and the concept of national security is difficult to determine, so it is sufficient to settle for the second best thing and make a limited combing of the scope of the National Security Law, which is sufficient to solve the question of "whether the anti-sanctions law is a national security law?"
3. Clarification of the concepts of national security and national security law
The first point in resolving the question of "is the anti-sanctions law a national security law?" is the interpretation of the legislative purpose. The Anti-Foreign Sanctions Law, the Blocking Rules, and the Unreliable Entity List all stipulate two legislative purposes: "to safeguard national sovereignty, security and development interests"; to protect the legitimate rights and interests of mainland citizens, enterprises and other organizations". As far as the first item is concerned, whether the expression means "safeguarding national sovereignty, national security and national development interests" or "safeguarding national core interests", it is closely related to national security. As far as the second legislative purpose is concerned, this expression can be understood as safeguarding social security and people's security in the context of the overall national security concept, while the overall national security concept requires the overall coordination of national security, social security and people's security blurs the boundaries between the three types of security, and the "legitimate rights and interests of mainland citizens, enterprises and social organizations" may be understood as national interests related to national security. Therefore, as long as we clearly distinguish the relationship between national security, social security, and personal security in the overall national security concept, we can accurately understand whether "safeguarding the legitimate rights and interests of mainland citizens, enterprises, and social organizations" represents national interests related to national security, so as to judge whether the anti-sanctions law is a national security law in terms of legislative purpose.
The second key point in resolving the question of "is the anti-sanctions law a national security law?" lies in correctly understanding the meaning of "overall" in the overall national security concept. The national security system in the context of the overall national security concept covers 11 areas: homeland security, economic security, scientific and technological security, cultural security, social security, ecological security, military security, cyber, artificial intelligence, data security, nuclear security, biological, space, deep-sea, polar security, and overseas interest security. Only by correctly understanding the "totality" in the overall concept of national security can we distinguish the relationship between security in different fields and the security of different subjects, and avoid the generalization of national security.
(1) Different types of security in theoretical sources
From a historical perspective, the overall national security concept draws on and critically inherits the excellent national security ideas and theories of ancient and modern China and foreign countries, and the inherited content includes the general laws of national security, so the concept of national security in the overall national security concept will not violate the general laws of national security. The sources of theoretical and practical experience in the overall concept of national security include: the enrichment and development of the Marxist national security thought and its theory of sinicization; the inheritance and discarding of China's traditional national security thought; the absorption and transcendence of the security theories of Western countries; and the practical experience of the more than 70 years since the founding of the People's Republic of China.
Marxism believes that the state is the tool of the ruling class, while the ruling class in a socialist country is the proletariat, and the purpose of the state is to safeguard the interests and security of the proletariat. In China's traditional thinking on national security, "the people are the foundation of the state, and the state is solid" is a view that transcends the differences between the hundreds of schools of thought, which emphasizes loving and benefiting the people, and avoiding famine, natural disasters, foreign invasions and other local problems from turning into major issues affecting state power and political system, and also does not ignore the difference between national security, social security, and personal security. The national security theories of various schools in the West mainly take national security in the international community as the research object, that is, pay attention to the external factors of national security, but also emphasize the concern for "human security", the issue of "human security" was put forward by the United Nations Development Programme in 1994, and the topic also does not deny the difference between national security and public security and personal security, emphasizing that the state bears the primary responsibility for realizing human security and safeguarding human dignity, so "human security" The issue is really about reinforcing the distinction between national security and personal security. Judging from the practice of safeguarding national security in the past 70 years or so, the traditional security concept, the new security concept, and the overall national security concept have been inherited in the same line, and all emphasize military security and political security, which are security with the state as the main body.
The classification and distinction of security between different subjects and different fields is the consensus in ancient and modern Chinese and foreign national security ideas and theories, and it is also the general law of national security inherited from the overall national security concept, and the national security law under the guidance of the overall national security concept should follow and embody this law. Therefore, in the two legislative purposes of the Anti-Foreign Sanctions Law, the Blocking Rules, and the Provisions on the Unreliable Entity List, "protecting the legitimate rights and interests of Chinese citizens, legal persons, and other organizations" should be understood to protect social security and personal security rather than national security. The legislative purpose of the three regulations includes safeguarding social security and personal security in addition to national security, so from the perspective of legislative purpose, the anti-sanctions law cannot be classified as a national security law.
(2) The "overall" of the overall national security concept
The overall national security concept has critically inherited the excellent national security ideas of ancient and modern China and foreign countries, inherited the ideas that embody the general laws of the country and meet the requirements of China's practice, and also has a philosophical temperament that is different from the security ideas and theories of other countries.
The overall concept of national security is embodied in three levels: world view, epistemology and methodology. From the perspective of world view, the overall national security concept emphasizes the overall national security rather than fragmentation, dynamic rather than static, open rather than closed, relative rather than absolute, and common rather than isolated, pointing to the lasting peace and universal security advocated by a community with a shared future for mankind. From an epistemological point of view, the overall view of national security refers to the understanding of China's national security in the way that people's security, political security, and national interests are unified. From a methodological point of view, the overall concept of national security refers to the overall overall approach, including the coordination of development and security, the coordination of risk prevention and disposal, and the coordination of maintaining and shaping security. According to the guidance of the current world view, epistemology and methodology of overall national security, China's national security governance model has undergone obvious changes, including: from a single governance body to a pluralistic governance body, from compulsory governance to comprehensive governance, from administrative governance to rule of law governance, and from closed governance to open governance.
The "overall" implementation of the overall national security concept is manifested in the National Security Law and the National Security Law: first, it emphasizes the joint participation of multiple subjects, and all departments of state organs, social organizations, and citizens enjoy and assume different rights and obligations, and jointly participate in the governance of national security; Comprehensive response and implementation in the process of compliance with the law, and overall consideration is carried out in the governance work, including the risk prevention stage, the risk handling stage, and the non-routine handling in the state of emergency. Under the connotation of "totality", the security of different subjects and different fields seems to blur the boundaries and lose the distinction between them in the dynamic, but this is a misunderstanding.
First of all, ontologically, without relative distinctions and boundaries, it is impossible to achieve the overall balance required by the "totality". If several objects are the same in all respects, then there is no difference between different objects, and the so-called "unity" will be replaced by "unity".
Second, the practice of the rule of law also reflects the distinction between different types of security. For example, Chapter III of the 2015 National Security Law stipulates that there is a significant difference between the duties and responsibilities of the National People's Congress, the President, the State Council, the Central Military Commission, the departments of central state organs, local people's congresses at all levels, the standing committees of local people's congresses at and above the county level, the governments of the Hong Kong and Macao Special Administrative Regions, the people's courts, the state public security, the communist security organs, military organs and other state organs and their staff, and the obligations and rights of citizens and organizations as stipulated in Chapter VI. For another example, Chapter II of the National Security Law makes different provisions on the connotations and tasks of security in different fields, such as political security, people's security, territorial security, military security, economic security, and food security.
From the perspective of security in different fields, the anti-sanctions law is a law for safeguarding economic security, but economic security under the "overall" is not equal to national security. From the perspective of the security of different subjects, the anti-sanctions law is a law to safeguard national security, social security and personal security, but social security and personal security under the "overall" are not equal to national security. Therefore, under the requirements of the overall national security concept, economic security still cannot be unconditionally transformed into national security, and social security and personal security still cannot be unconditionally transformed into national security. Therefore, even if the security of different fields and the security of different subjects can be converted under certain conditions, the anti-sanctions law cannot be classified as a national security law, but a law that safeguards both economic and national security, and a law that safeguards both national security and social security and personal security.
In summary, according to the concept of national security and the concept of national security law in the context of the overall national security concept, the Anti-Foreign Sanctions Law, the Blocking Regulations, the Unreliable Entity List, the Export Control Law, and the Foreign Trade Law cannot be completely classified as national security laws. The difference between the various anti-sanctions laws and regulations should not be overlooked, as well as those that are not, as well as those that are not. Therefore, it is not feasible to classify the anti-sanctions law as a national security law, and to coordinate the anti-sanctions legal system under the national security system.
4. Distinguish between the applicable "national security" clauses and the "non-national security" clauses
The overall planning and coordination of the legal system for counter-sanctions must wait for the accumulation of practical experience, which cannot be resolved through the revision of the law. In view of the issue of legality in international law, the distinction between the "national security" and "non-national security" provisions in the anti-sanctions legal system is another way to improve the anti-sanctions law. This solution has been applied in China's anti-sanctions legal practice and can avoid the generalization of national security.
(1) "National security" clause and "non-national security" clause
According to the Anti-Foreign Sanctions Law, the Blocking Regulations, and the Unreliable Entity List, which contain specific legal provisions related to the countermeasure system, provisions directly related to national security and provisions not directly related to national security coexist in the three regulations. From the perspective of legislative purposes, the Anti-Foreign Sanctions Law, the Blocking Regulations, and the Unreliable Entity List Provisions all clearly stipulate two types of legislative purposes - "safeguarding national sovereignty, security and development interests" and "protecting mainland citizens, enterprises or other organizations", covering national security, public safety and personal safety. Judging from the triggering of the three countermeasures, national security reasons are not the only reasons or factors to be considered. Article 3 of the Anti-Foreign Sanctions Law stipulates the trigger conditions for countermeasures: foreign countries violate international law and basic norms governing international relations to contain and suppress the mainland under various pretexts or in accordance with their own laws, adopt discriminatory restrictive measures against mainland citizens and organizations, and interfere in the internal affairs of the mainland. Article 2 of the Provisions on the Unreliable Entity List stipulates two triggering conditions for the unreliable entity list system: first, the foreign entity "endangers China's national sovereignty, security and development interests" in international economic and trade and related activities; Lawful rights and interests of other organizations or individuals. Article 6 of the Blocking Measures stipulates that the Working Mechanism shall consider the following factors in determining whether to activate the blocking system: whether it violates international law and basic norms governing international relations, the possible impact on China's national sovereignty, security and development interests, and the possible impact on the legitimate rights and interests of Chinese citizens, legal persons or other organizations.
The concept of national security in the context of the overall concept of national security still maintains the distinction between national security, public security and personal security in the main body, and abides by the boundaries between national security and non-national security in each field while emphasizing the overall planning and coordination of security in various fields, so the anti-sanctions law cannot be classified as a complete national security law. At the same time, the Anti-Foreign Sanctions Law, the Blocking Regulations, and the Unreliable Entity List coexist with "national security" and "non-national security" provisions. Therefore, the two types of provisions in the anti-sanctions law should not be confused, and the application and interpretation of the two types of provisions should be distinguished and limited.
(2) The practice of counter-sanctions laws
According to the announcement of the Ministry of Commerce and the statement made by the spokesperson of the Ministry of Foreign Affairs at a regular press conference, as of October 31, 2022, China has imposed sanctions on foreign entities, including individuals and enterprises, 11 times. In terms of legal basis, the Foreign Trade Law appears once, the Anti-Foreign Sanctions Law appears once, and the other nine times do not clearly indicate the legal basis. In terms of the subject matter of sanctions, there were four cases of sanctions imposed on foreign entities for their actions violating international law and infringing on China's national interests, and seven times for imposing counter-sanctions on Chinese entities for their actions violating international law. The word "security" appears eight times, all of which are expressed as "sovereignty, security, development interests" or "sovereignty, security interests", and it is not certain that the word "security" in this expression means "national security". Five times the actions of foreign entities were emphasized to violate international law, and six times the acts of foreign entities were emphasized to violate the basic norms of international relations, all of which appeared in announcements or press conference statements on the imposition of counter-sanctions measures as a result of sanctions imposed by other countries. It can be seen from the analysis that when China implements counter-sanctions, it emphasizes that the actions of other countries violate international law and basic norms governing international relations, and when imposing unilateral sanctions that do not target other countries, it mainly emphasizes that the actions of other countries infringe on China's core national interests. From this difference, it can be seen that in the practice of China's counter-sanctions law, there is a distinction between unilateral sanctions and counter-sanctions, the former on the grounds of safeguarding the core interests of the country closely related to national security, and the latter on the grounds of countermeasures against sanctions against other countries that violate international law and basic norms governing international relations. The former is more in line with the "national security exception" clause in international law, and the latter basically meets the requirements of "countermeasures" in international law in terms of its constituent elements.
There are "national security" clauses and "non-national security" clauses in the counter-sanctions law, and the application of the two clauses in China's anti-sanctions legal practice is deliberately distinguished, so that China's counter-sanctions measures have stronger legitimacy at the level of international law.
epilogue
China's anti-sanctions laws are in a security dilemma, and the two biggest problems are the coordination between different anti-sanctions legal systems and the legality of counter-sanctions measures at the international legal level. The solutions proposed by scholars to these two problems take the path of generalizing national security. After the generalization of national security, the anti-sanctions law can be classified as a national security law, and the anti-sanctions legal system can be coordinated under the national security system, and the ability of the counter-sanctions law to respond to non-traditional national security issues can be enhanced without amending the law. After clarifying the concepts of national security and national security law in the context of the overall national security concept, it can be seen that the scheme of classifying the counter-sanctions law as a national security law is not legally justified. The issue of coordination between the different legal regimes against sanctions cannot be resolved for the time being. In view of the legitimacy of the anti-sanctions law at the international law level, distinguishing between the "national security" clause and the "non-national security" clause in the counter-sanctions law is an effective solution that can avoid the generalization of national security, has been applied in practice, is more in line with the requirements of the rule of law, and is more in line with China's requirements for maintaining an open and free international economic and trade order.