Akshita Tiwary*

 

Recently, China’s legislature with near unanimity passed a new law which empowers Beijing to frame a national security law for Hong Kong for the first time since it acquired the region in 1997. This proposed law will suppress activities threatening national security in the semi-autonomous city of Hong Kong. There has been a global decry against this decision which will curb democratic freedoms in this international economic hub. People are viewing the passed legislation to be a breach of China’s promise to maintain an arrangement of “one country, two systems” with Hong Kong which it agreed to initially. Against the backdrop of this situation, this article aims to analyse firstly, whether China has the authority to frame this national security law given its background and relations with Hong Kong; and secondly, to assess the legality of this proposed law in the context of both domestic and international laws.

Background

Prior to 1997, Hong Kong was a British colony which was acquired during the First Opium War. Under the terms of the 1898 Convention for the Extension of Hong Kong Territory, China was to regain control of Hong Kong in 1997 after the British lease expired.[1] While under the control of the British, Hong Kong flourished as a capitalist centre, contradictory to the culture of mainland communist China. In accordance with the Sino-British Joint Declaration signed by both governments in 1984 (also an international treaty lodged with the United Nations), upon resuming sovereignty over Hong Kong, China agreed to respect its realities and establish it as a Special Administrative Region (SAR) under Article 31 of the Chinese Constitution. This also included granting Hong Kong a high level of autonomy, along with executive, legislative and independent judicial power. One of the key features of this Declaration, having special relevance with regards to the current scenario, was China’s promise to ensure that rights and freedoms of people, like those of speech, assembly, strike, etc. would remain unchanged. Hence, the stipulated terms of this Joint Declaration paved the way for the origin of “one country, two systems” policy of China post the handover of Hong Kong in 1997.

2019 Hong Kong Protests

Since 1997, Hong Kong has been ruled under its mini-Constitution known as the Basic Law, which guarantees substantive civil and political freedoms. These democratic freedoms stand distinctive from those guaranteed in authoritarian China. However, it has often been noticed that China has tried to undermine and encroach upon these freedoms in some way or the other.[2] Its interference with Hong Kong’s political autonomy has been a subject of focus for governments around the world. The latest interference which sparked flaming protests was the proposed Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. Under this Bill, Hong Kong would have to extradite individuals convicted of violent and commercial crimes to mainland China for detention and prosecution (including individuals from those countries that it did not have an extradition agreement with). This provision was explicitly stated in Section 8 of the Bill.

The main contention against this extradition Bill was the fear that it would allow Chinese authorities to detain pro-democracy political activists in Hong Kong, and punish them harshly under rules of Chinese law. Several demonstrations were carried out against this Bill by millions of Hong Kong citizens. The protesters had five main demands from the government:

  1. complete withdrawal of the extradition bill;
  2. drop all charges against protesters;
  3. reverse the characterization of the June 12 demonstration as a “riot”;
  4. conduct an independent investigation of police conduct during the protests; and
  5. implementation of the election of the Chief Executive and all LegCo members by universal suffrage.

The government accepted the first demand of the protesters, and Hong Kong’s Chief Executive Carrie Lam suspended the Bill indefinitely because of such pressure. However, people’s dissent against Chinese authorities in order to protect their freedoms alerted Beijing to the risks that this posed to the rule of the Communist Party. This largely paved the way for the idea behind Hong Kong’s new security law to stifle such challenges to Chinese rule in the future.

Effects of the proposed law

The decision of the National People’s Congress (NPC, which is China’s main ruling body) to frame the new national security law begins an unprecedented era of direct interference by Chinese authorities in Hong Kong. This law, which is likely to come into force by August-September, can put an end to several democratic rights in the city. It will bypass Hong Kong’s LegCo and create new national security crimes. It is expected that the law will “unflinchingly” aim to suppress any conduct which can seriously endanger national security like separatism, subversion of state power or organizing terrorist activities. This law will be incorporated within Hong Kong’s Basic Law.

When implemented, the national security law will seriously threaten the political rights of the people of Hong Kong. Anybody opposing the measures of the Chinese government could immediately be seen as a secessionist or a terrorist. Specifically, this law will prohibit rights of free speech and assembly due to the alleged broad interpretation of terms like ‘national security’, ‘subversion’, ‘acts’ and ‘activities’, as noted by Phil Robertson, deputy director of Human Rights Watch’s Asia division. The law will also punish “foreign interference” which might use Hong Kong as a base for carrying out “separatist, subversive, infiltrative or destructive activities”. This could imply the expulsion of international NGOs and foreign journalists from Hong Kong, who often expose the anti-democracy measures resorted to by Chinese officials. The decision of the NPC to enact this law can provide for the operation of Ministry of State Security in Hong Kong, which can include spying in schools and monitoring people’s social media accounts to track any voices of dissent. Such security agencies regularly harass people in mainland China who criticize the government. All this justifies people’s fears concerning the new law, and their harsh opposition to it. It is impossible to deny that such a law will violate not only the provisions of the Basic Law, but also China’s obligations under international law.

Legality of the proposed law

The proposed law will be a clear violation of Hong Kong’s Basic Law. Its preamble explicitly provides for the principle of “one country, two systems”. Article 2 confers a high degree of autonomy upon Hong Kong, while Article 4 promises to safeguard the rights and freedoms of the residents of Hong Kong. This is further elaborated upon in Chapter III of the Basic Law, which states the fundamental rights and duties of residents. Under this section, Article 27 provides for freedom of speech, press, assembly, procession, demonstration and the right to join trade unions and strike. Article 28 states that freedom of the person is inviolable, and Article 30 protects the privacy of communication. Most importantly, Article 39 provides for the application of ICCPR and ICESR in Hong Kong. All these provisions are liable to be contravened by the new law.

Along with Article 11 which provides that no law enacted by Hong Kong’s legislature can undermine the basic rights (including social, economic and political rights) of this SAR, Article 18 under Chapter II (defining the relationship between Chinese authorities and Hong Kong) holds special relevance. This article markedly states that national law, except those listed in Annex III, cannot be applied in Hong Kong. Interestingly, the laws listed in Annex III are only limited to foreign affairs, defence and other matters which lie outside the purview of the region. On the basis of this Article, one can rationally argue that public order comes within the purview of Hong Kong’s authorities, and simply because it is disrupted by protests against Chinese interference, China does not have the right to make a law on the pretext of preserving “national security”. Hence, the formulation of a law on such arbitrary grounds lies beyond the scope of the NPC.

An International Law Perspective

Time and again, China has defended its stance in such matters by arguing that other nations should not interfere in its internal matters which can be misconstrued as breaching its sovereignty. However, it is important to note that a state does not only have rights, but also duties under international law, which limit its potential to abuse power both internally and with respect to other states. One of these duties is to protect human rights which extend across jurisdictions. A state cannot use the defence of sovereignty to escape culpability resulting from human rights violations in any case.

When it comes to proving to the international community that a state is adequately protecting human rights, the concerned state often formulates domestic laws in accordance with the provisions of those international treaties which the state chooses to accept. This also ensures that other states do not unnecessarily interfere with its sovereignty in this regard. Article 39 of the Basic Law, by providing for the application of rights under the ICCPR and ICESR in Hong Kong, demonstrates China’s acceptance of an international treaty by incorporating it into Hong Kong’s domestic law. Hence logically, the international community is bound to question China’s intentions when it decides to draft a controversial law, especially when this law has the potential to violate several human rights under both ICCPR and ICESR. China, then, cannot claim the defence of sovereignty to prevent other states from raising their voices against this gross violation of international law.

Conclusion

There is no doubt that the new law will have the capability to undermine the very foundation of autonomy which defines Hong Kong and distinguishes it from mainland China. News of this law has provoked dissatisfactory reactions from democratic governments around the globe. A joint statement was issued by Australia, Canada, the UK and the US, condemning the same. Economically, Hong Kong’s trade can be severely impacted in light of the possible reaction of USA to revoke its special trading status accorded to Hong Kong. The government of United Kingdom has agreed to extend the visa rights of 300,000 Hong Kong British national (overseas) passport holders if China implements this law. This could culminate in future citizenship. Nonetheless, Chinese authorities should not be allowed to suppress independent people’s rights in this way. When a government starts acting arbitrarily and pays no heed to the voices of citizens, then stringent opposition appears to be the only solution. Hopefully, the international community’s collective stance against this measure can create enough pressure on Beijing to abandon this authoritarian law, thereby upholding the promise it made in 1997 to protect the rights and freedoms of the people of Hong Kong.

 

[1] Convention between the United Kingdom and China Respecting an Extension of Hong Kong Territory, 4(4) The American Journal of International Law (Cambridge University Press, 1910) 295-296.

[2] Han Zhu, Beijing’s “Rule of Law” Strategy for Governing Hong Kong: Legalisation without Democratisation”, China Perspectives (2019).

* Second-year law student at Government Law College, Mumbai