STATE SECRETS: CHINA'S LEGAL LABYRINTH - HRIC

The all-encompassing, circular,
and vague classification of
information and criminalization
of disclosure and possession of
that information—with or without
knowledge of doing so—creates a
chilling effect on the culture of
human rights.
B.
Impact of the System on Human Rights
24 HUMAN RIGHTS IN CHINA STATE SECRETS: CHINA’S LEGAL LABYRINTH
The state secrets framework is broad in both implementing structure (multiple
bodies at all levels of government have responsibilities and authority on state
secrets) and substance (large categories of information are classified or can be classified).
The PRC falls far below the international standard on the protection of the
right to freedom of expression and information due to the comprehensive amount
of information that can be classified, the subjective and arbitrary means by which
information is classified, and the serious criminalization of disclosing that information.
Furthermore, where the international legal framework places a burden on the state
to show that there is a legitimate need to restrict information, 100 the emphasis in
Chinese domestic law places the burden on the individual to protect classified
information even if it has not been already designated as such through the state
secrets bureaus. While the delineated purposes enumerated in Article 1 of the State
Secrets Law tie in somewhat with legitimate restrictions of the right to freedom of
expression under the ICCPR, the provision that state secrets include “other matters
that are classified as state secrets” by the NAPSS 101 allows numerous bodies at all
levels of government the ability to classify any information they deem necessary as
state secrets.
The impact of this legal and enforcement framework suggests that not only are
individuals impacted by the serious criminal sanctions levied for “disclosing state
secrets,” but the public interest is undermined where there is so little transparency
and freedom of expression is violated. The all-encompassing, circular, and vague
classification of information and criminalization of disclosure and possession of
that information—with or without knowledge of doing so—creates a chilling
effect on the culture of human rights, in particular on three specific areas critical to
protection for human rights: the rule of law, transparency and accountable governance,
and participation of civil society.