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Hong Kong National Security Law: Beijing in Breach?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Amy Price



Introduction

2020 has thrown Hong Kong once again back into the limelight on the international stage, after receiving a fresh spate of allegations, its National Security Law risks breaching multiple international laws and the Universal Declaration of Human Rights (UDHR). The recent implementation of this law has resulted in unprecedented mass arrests and the barring of pro-democracy candidates from elections.[1] This article will discuss the foundations of such security laws, Hong Kong’s preceding political turbulence in 2019, and the international implications of allowing such law to have been enacted.


Conception of the National Security Law

When Hong Kong was released from British sovereignty in July 1997, [2] a “mini-constitution” of sorts was established, known as the Basic Law. This system is premised on the “one country, two systems” principle existing in China, which allows for the coexistence of socialism and capitalism and provides for a high degree of autonomy for Hong Kong.[3] Pertaining to national security and interference in domestic affairs, the crux of Article 23 of the Basic Law stipulates Hong Kong ‘shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Chinese Government, or theft of state secrets’.[4] However, this clause was never implemented due to widespread fear of its curtailing potential of rights such as freedom of expression and of the press, neither of which are enjoyed by citizens of mainland China. An attempted enactment in 2003 was swiftly abandoned after half a million people took to the streets in protest. [5]


What changed and when?

So, in the face of this vehement national security unpopularity, what changed in 2020? The decidedly shelved security laws were revived in reaction to Hong Kong’s dissension into the largest protests in their history [6] in 2019 against the Hong Kong Extradition Bill, proposing individuals from Hong Kong accused of having committed crimes in mainland China could be extradited and tried there, [7] an erosion of citizens’ enjoyed civil liberties. This proposed amendment brought about the most serious crisis of governance since the establishment of the Hong Kong Special Administrative Region, [8] and reinvigorated Beijing’s hard-line stance towards it, a boiling point of the underlying tension the “one state, two systems” principle ignited in 1997. It has also been widely theorised the National Security Law was an attempt by the Chinese Government to curb the likely possibility of a pro-democracy candidacy majority in Hong Kong’s September elections in 2020,[9] law coming into force in June 2020.


Breach of International Law


The National Security Law came into effect on 30th June 2020, giving Beijing powers to shape life in Hong Kong like it never had before. [10] This law criminalises secession, subversion, terrorism and collusion with foreign or external forces, all of which are punishable by a maximum sentence of life in prison.[11] Since its imposition, 25 people have been arrested under this new law [12] and China has already been called upon by numerous international institutions to explain apparent breaches of human rights obligations the National Security Law has introduced.


A mandate from seven different working groups and special rapporteurs, [13] produced in September 2020, is one of the principle authorities on the potential breach of international law the National Security Law poses. This warning to the Chinese Government expresses concern the new law doesn’t conform to their international legal obligations, such as the UDHR and the International Covenant on Civil and Political Rights (ICCPR).[14] This is furthered by concerns of a lack of precision in the law, infringes on fundamental rights, and possibility of not meeting the required thresholds of necessity, proportionality and non-discrimination under international law.[15] Underscoring the mandate and this “suggestion” of an international legal breach is the rapporteurs’ recognition and assertion of security and human rights being intertwined and not separate, [16] cementing the now widely-held view of a Chinese breach of international obligations.


Throughout this mandate, one of the primary recurring themes of breach is highlighted in the principle of legal certainty, as enshrined in Article 15(1) of the ICCPR and Article 11 of the UDHR. As repeatedly expressed by the rapporteurs, “national security is not a term of art, nor does the use of this phrase as a legislative matter give absolute discretion to the state”.[17] The wording of the law, particularly in relation to defining the crime of secession, was so broad and imprecise to the extent a range of ICCPR-protected activities could be redefined as crimes, which would amount to explicit breach of Chinese international obligations to the UDHR and ICCPR, potentially giving rise to UN-imposed sanctions on the nation.


Furthermore, in the respect of imprecision and broadness, it was asserted that the prescribed crimes of secession and subversion were both ‘dangerously interchangeable’ [18] and found to go beyond internationally agreed definitions of terrorism. This not only marks a potential international law breach, but means such language could be open to misuse against human rights defenders, journalists and civil society actors, particularly those who advocate for the now more extinguished pro-democracy movement in Hong Kong.


So, has China breached international law?


Today, the debate concerning whether the National Security Law in Hong Kong is a breach of international law has progressed into consideration of whether there has been a violation of the Sino-British Joint Declaration (1984), which preceded Hong Kong’s return to Chinese control. [19] Under its terms, Hong Kong would be under the authority of the People’s Republic of China, but would enjoy a “high degree of autonomy” and its social and economic systems and lifestyle would remain unchanged for fifty years. [20]


Very recently, on 12th November 2020, Foreign Secretary Dominic Raab issued a statement proclaiming particularly the aspect of security law disqualifying elected legislators in Hong Kong “constitutes a clear breach of the legally binding Sino-British Joint Declaration” [21] and the UK and its international partners will “hold China to the obligations it freely assumed under international law”.[22] The Declaration, according to Raab, has been breached on both the grounds of China’s commitment to Hong Kong’s high degree of autonomy and the right to freedom of speech guaranteed under Paragraph 3 and Annex I of the Declaration. [23] Such breach of the Declaration underpinning the “mini-constitution” and essentially the legal system in Hong Kong by extension highlights that the National Security Law itself is indeed a breach of international law - the most recent actions likely to signal fresh sanctions on Chinese and Hong Kong officials, and in cooperation with the US.[24]


This poses a new question- can China be held accountable for breaking an international treaty? This will be the third time since 1997 China has breached the legally-binding Joint Declaration, the first time being in 2016, and the second in June 2020, when the first part of the National Security Legislation was introduced.[25] However, despite Dominic Raab’s assertions, legal routes open to the UK to challenge Beijing are limited to sanctions against individual Chinese leaders or Hong Kong legislators. The Sino-British Joint Declaration does not have a mechanism endorsed by both parties to ensure its compliance.[26] Therefore, even though the agreement is registered with the UN, it does not include mechanisms of supervision by it, meaning only signatories of the declaration have the right to raise any potential terms violations.


It therefore remains to be seen whether China’s apparent breach of international law is in fact condemned under such law, or whether it can legally be condemned at all.




 

Sources [1] The Diplomat Simon Shen, ‘The Sino-British Joint Declaration and International Law’ (The Diplomat, 9 September 2020) < https://thediplomat.com/2020/09/the-sino-british-joint-declaration-and-international-law/ > accessed November 2020 [2] Erin Blakemore, ‘How Hong Kong’s complex history explains its current crisis with China’ (National Geographic, 7 August 2019) < https://www.nationalgeographic.com/culture/topics/reference/hong-kong-history-explain-relationship-china/#:~:text=It%20was%20the%20end%20of,outposts%20of%20the%20British%20Empire. > accessed November 2020 [3] Security Bureau, Proposals to Implement Article 23 of the Basic Law (Consultation Document, 2002) ch 1 [4] Security Bureau, Proposals to Implement Article 23 of the Basic Law (Consultation Document, 2002) ch 1, 1.5 [5] Helen Davidson and Lily Kuo, ‘Hong Kong’s Security laws: what are they and why are they so controversial?’ (The Guardian, 21st May 2020) <https://www.theguardian.com/world/2020/may/21/hong-kongs-security-laws-what-are-they-and-why-are-they-so-controversial> accessed November 2020 [6] Albert H.Y Chen, ‘A Perfect Storm: Hong King-Mainland Rendition of Fugitive Offenders’ [2019] 49, 2 Hong Kong Law Journal [7] Willaim Yang, ‘Hong Kong- Extradition bill withdrawal fails to pacify protestors’ (DW, 6th September 2019) <https://www.dw.com/en/hong-kong-extradition-bill-withdrawal-fails-to-pacify-protesters/a-50329676> accessed November 2020 [8] Albert H.Y Chen, ‘A Perfect Storm: Hong King-Mainland Rendition of Fugitive Offenders’ [2019] 49, 2 Hong Kong Law Journal [9] Helen Davidson and Lily Kuo, ‘Hong Kong’s Security laws: what are they and why are they so controversial?’ (The Guardian, 21st May 2020) <https://www.theguardian.com/world/2020/may/21/hong-kongs-security-laws-what-are-they-and-why-are-they-so-controversial> accessed November 2020 [10] Grace Tsoi and Lam Cho Wai, ‘Hong Kong security law: What is it and why is it worrying ?‘ (BBC, 30th June 2020) < https://www.bbc.co.uk/news/world-asia-china-52765838 > accessed November 2020 [11] Ibid [12] Helen Davidson, ‘Hong Kong security law ‘may break international laws’’ (The Guardian, 4th September 2020) <https://www.theguardian.com/world/2020/sep/04/hong-kong-security-law-may-break-international-laws-china-human-rights-un> accessed November 2020 [13] Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; and the Special Rapporteur on minority issues, OL, CHN 17/2020 <https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487> [14] Ibid, 1 [15] Ibid [16] Vanesse Chan, Bex Wright, Ivan Watson and Jadyn Sham, ‘Nearly 300 arrested in Hong Kong protests over postponed local elections’ (CNN, 7th September 2020) <https://edition.cnn.com/2020/09/06/asia/hong-kong-protests-elections-arrest-intl/index.html> accessed November 2020 [17] Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; and the Special Rapporteur on minority issues, OL, CHN 17/2020 <https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487> [18] Helen Davidson, ‘Hong Kong security law ‘may break international laws’’ (The Guardian, 4th September 2020) <https://www.theguardian.com/world/2020/sep/04/hong-kong-security-law-may-break-international-laws-china-human-rights-un> accessed November 2020 [19] The Diplomat Simon Shen, ‘The Sino-British Joint Declaration and International Law’ (The Diplomat, 9 September 2020) < https://thediplomat.com/2020/09/the-sino-british-joint-declaration-and-international-law/ > accessed November 2020 [20] Louisa Brooke-Holland, ‘Hong Kong: the Joint Declaration’ (House of Commons Library, UK Parliament, 5th July 2019) <https://commonslibrary.parliament.uk/research-briefings/cbp-8616/ > accessed November 2020 [21] Foreign, Commonwealth and Development Office and Rt Hon Dominic Raab MP, ‘Foreign Secretary declares breach of Sino-British Joint Declaration’ (Gov¸12th November 2020) <https://www.gov.uk/government/news/foreign-secretary-declares-breach-of-sino-british-joint-declaration> accessed November 2020 [22] Ibid [23] Ibid [24] Patrick Wintour, ‘China is breaking Hong Kong treaty with UK, says Dominic Raab’ (The Guardian, 12th November 2020) <https://www.theguardian.com/world/2020/nov/12/china-is-breaking-hong-kong-treaty-with-uk-says-dominic-raab> accessed November 2020 [25] Foreign, Commonwealth and Development Office and Rt Hon Dominic Raab MP, ‘Foreign Secretary declares breach of Sino-British Joint Declaration’ (Gov¸12th November 2020) <https://www.gov.uk/government/news/foreign-secretary-declares-breach-of-sino-british-joint-declaration> accessed November 2020 [26] The Diplomat Simon Shen, ‘The Sino-British Joint Declaration and International Law’ (The Diplomat, 9 September 2020) < https://thediplomat.com/2020/09/the-sino-british-joint-declaration-and-international-law/ > accessed November 2020

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