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The Hong Kong National Security Law a Harbinger of China’S Emerging International Legal Discourse Power Moritz Rudolf

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The Hong Kong National Security Law a Harbinger of China’S Emerging International Legal Discourse Power Moritz Rudolf NO. 56 NOVEMBER 2020 Introduction The Hong Kong National Security Law A Harbinger of China’s Emerging International Legal Discourse Power Moritz Rudolf The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Security Law) highlights the shortcomings of the 1984 Sino-British Joint Declaration and the inherent conflicts of the “one coun- try, two systems” principle. The arrangement has always been full of contradictions and grey areas. With the Security Law, the Chinese leadership has created facts on the ground. The move comes at the expense of civil liberties and accelerates the spread of socialist legal concepts in Hong Kong. But, on this issue, Beijing is not isolated in- ternationally. On the contrary, it is supported by economically dependent states in its assessment of the Security Law as an internal affair. China’s ambition to gain inter- national discourse power in legal matters is strategically embedded in the Belt and Road Initiative (BRI). Beijing’s course of action in Hong Kong serves as a test balloon in this endeavour. Decision-makers in Germany and Europe are still not sufficiently aware of the problems concerning Chinese legal concepts. More expertise is urgently needed. The fact that Western democracies are days later, on 13 October 2020, the inter- increasingly isolated in their assessment national community elected China to the UN of the Hong Kong question was recently Human Rights Council for a three-year term. underlined in the general debate of the 3rd Committee of the United Nations (UN). Speaking on behalf of 39 states (including Content of the Security Law 20 EU Member States, the USA, the United Kingdom, Japan, but also small states such The Security Law entered into force on as Nauru, Palau and Liechtenstein), the Ger- 30 June 2020. According to Article 1, its man Ambassador expressed concern that sev- purpose is eral provisions of the Security Law do not to implement the “one country, two sys- comply with China’s international legal obli- tems” policy; ∎ gations. This was immediately followed by to prevent, suppress and punish seces- a statement made by the representative of sion, subversion, terrorism and collusion ∎ Pakistan (representing 54 states) stressing with foreign powers; that the law was an internal affair of the to maintain prosperity and stability in People’s Republic of China (PRC). Just a few Hong Kong; ∎ to protect the rights and interests of the mainland. Chinese criminal procedural Hong Kong residents. law applies. Hong Kong authorities must ∎ The law creates numerous institutional comply with the measures taken by the changes and creates new enforcement Office (Art. 57). The activities of the Office mechanisms, such as the “Committee are not subject to the jurisdiction of Hong for Safeguarding National Security”. The Kong (Art. 60). Committee is under the supervision of and accountable to the central government (Art. 12). The Committee’s decisions are not Criticism and Justification amenable to judicial review (Art. 14). The central government will appoint a National Since it was announced by the National Security Adviser to sit in on meetings of People’s Congress (NPC) on 22 May 2020, the Committee (Art. 15). Furthermore, the the legality of the Security Law has been a police force will establish a department bone of contention both inside and outside for safeguarding national security (which Hong Kong. The law is being discussed by includes personnel from mainland China) politicians from around the world, aca- with law enforcement capacity (Art. 16). demics, representatives of the Hong Kong The Hong Kong Department of Justice will government, and party cadres from main- also establish a specialised prosecution land China. This debate is revealing fun- division (Art. 18). damentally different assessments of the The law punishes secession (Art. 20 and Basic Law of Hong Kong, the 1984 Sino- Art. 21), subversion (Art. 22 and Art. 23), British Declaration and the “one country, terrorist activities (Art. 24–28) and collu- two systems” principle. sion with a foreign country or with external One aspect of the security law that is con- elements to endanger national security troversial is its formal legality. Following (Art. 29 and Art. 30). Article 38 states that Article 18 of the Basic Law, the Security Law a criminal offence may also be committed was added to Annex III of the Basic Law, thus outside Hong Kong and by persons who becoming part of the Hong Kong legal sys- are not permanent residents in Hong Kong. tem. However, Article 23 of the Basic Law ex- Article 40 gives jurisdiction to Hong Kong. plicitly attributes the legislative competence An exception is provided for where (a) the for such a law to the Hong Kong legislature. case is complex because of a foreign con- The Chinese side points out that previous nection, (b) a serious situation arises and attempts to pass a national security law (in the Hong Kong Government is unable to 2003) have failed and that it is, therefore, effectively enforce the law itself, or (c) a necessary to fill a regulatory gap to restore major and imminent threat to national public order in Hong Kong. Beijing argues security has occurred (Art. 55). In this case, that it is entitled and obliged to do so. the “Office for Safeguarding National Secu- Substantive criticism has pointed out rity of the Central People’s Government”, that the offences are vaguely defined and exercises jurisdiction. The Office’s broad could be used for politically motivated mandate, includes (1) analysing and assess- criminal prosecution. The line between ing the national security situation in Hong exercising individual civil liberties and vio- Kong (as well as submitting proposals on lating national security is becoming increas- major national security strategies) (2) over- ingly blurred. The rights codified in the seeing, guiding, coordinating with, and pro- Basic Law, so the criticism goes, are being viding support to the local security author- undermined under the pretext of national ities, (3) collecting and analysing intelli- security. While the law contains a general gence and information, and (4) handling guarantee of respect for human rights, cases concerning offences endangering na- some of its other provisions preclude such tional security (Art. 49). Following Article protection. The law undermines the inde- 56, criminal proceedings may take place on pendence of the judiciary, contrary to the SWP Comment 56 November 2020 2 provisions of the Basic Law. The law also officials are already calling for further asserts jurisdiction over people who are “judicial reform” in Hong Kong. In the neither residents of Hong Kong nor ever meantime, the Security Law is sending a been there, even if their conduct is per- strong signal in the spirit of the Chinese fectly legal where the act is committed. idiom “Kill the chicken to scare the monkey This provision, therefore, even exceeds the (杀鸡儆猴)”. Critical voices fall silent for fear provisions of China’s Criminal Law and of persecution or criminal proceedings standard international practice. within the People’s Republic of China. The Chinese side, however, argues that the law affects merely a tiny fraction of the Hong Kong population, that it creates legal Shortcomings of the Sino-British certainty and thus is a prerequisite for Declaration of 1984 prosperity in the region. Seen from a Chinese perspective and in- The Security Law illuminates weaknesses of corporating Beijing’s understanding of law the Sino-British Declaration of 1984 (Decla- as a purely political instrument, this line of ration). The wording of the Declaration is argument is quite consistent. In China, the vague, contradictory and leaves room for Basic Law is seen as an ordinary law, where- interpretation, which the PRC is now taking as in Hong Kong it is largely understood advantage of. as a “mini-constitution”. By way of back- The Declaration is an international treaty ground: The Basic Law was drafted between between the PRC and the United Kingdom. 1985 and 1990 with the participation of It governs the “resumption” of Chinese sov- numerous representatives from Hong Kong, ereignty over Hong Kong (Article 1) and the and adopted by the NPC in 1990. It entered “restoration” of Chinese sovereignty by into force on 1 July 1997. Under Article the United Kingdom (Article 2). The negotia- 158 of the Basic Law, the power to review tions were initiated over concerns stem- whether the Security Law is compatible ming from the Hong Kong banking sector with the Basic Law is vested in the Standing in the late 1970s. Financial institutions Committee of the NPC. Since it was the NPC feared that land lease contracts in the New which enacted the Security Law in the first Territories (at that time a significant part of place, it is not expected to question the Hong Kong’s revenue) could only be con- legality of the law. cluded for an increasingly short period. The As regards the allegation that the Securi- cut-off date was 27 June 1997, three days ty Law undermines the independence of the before the expiry of the lease that the UK judiciary, it is also important to look at how and China had signed in 1898. There were the law is applied. So far, the police forces fears of a sharp rise in interest rates and de- have applied an extensive interpretation of mands for clarity about Hong Kong’s future. the law. However, only a handful of people The bilateral negotiations were charac- have been charged (as of 24 November 2020) terised by a strong power asymmetry to under the Security Law (including one motor- the detriment of London. The Chinese side cyclist who collided with a group of police issued an ultimatum for the conclusion officers, teen activist and pro-independence of an agreement in autumn 1983.
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