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Matters Relating to Two Treaties with Hong Kong – Submission Introduction

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Matters Relating to Two Treaties with Hong Kong – Submission Introduction Simon Henderson, BComm/LLB/GDLP (ANU), LLM (Fletcher) 28 September 2020 Matters relating to two treaties with Hong Kong – Submission Introduction I greatly appreciate the opportunity to provide a submission to the inquiry by the Joint Standing Committee on Treaties (JSCOT) examining matters relation to two treaties with Hong Kong (the Inquiry) and thank JSCOT for inviting me to the roundtable on 21 September 2020 (the roundtable) and to make this submission. This submission is made in my personal capacity and draws upon my specialised experience as an international human rights lawyer, particularly with respect to Hong Kong. It includes recent work as a Senior Policy Advisor at Justice Centre Hong Kong, as well as other roles covering Hong Kong, and China more broadly, at the Department of Foreign Affairs and Trade (DFAT), the Law Council of Australia and Human Rights in China. This submission will also expand upon comments provided in the roundtable. I note the 15 September 2020 letter from The Hon Christian Porter MP, Attorney-General, indicating that JSCOT is requested to expedite consideration treaty actions, which involve the suspension of the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong (the Extradition Agreement) as well as the suspension by mutual consent of the Agreement between the Government of Hong Kong and the Government of Australia concerning Mutual Legal Assistance in Criminal Matters (the MLA Agreement). I support the views expressed by the Attorney-General to ensure that any necessary actions are undertaken to formalise these treaty actions by 9 October 2020. This submission will address the following matters: - Suspension of the Extradition Agreement - Suspension of the MLA Agreement - Misuse of the “non-interference principle” by China in response Australia suspending agreements with Hong Kong - Fundamental changes in circumstances due to the National Security Law - Other treaty arrangements with Hong Kong - Responses by Hong Kong legal professional bodies to the National Security Law While the proposal in this case is to suspend, rather than terminate the treaty agreements, the effect will essentially be a termination. The People’s Republic of China (PRC) and the government of the Hong Kong Special Administrative Region (HKSAR) have said they will not back away from the National Security Law (NSL), despite widespread international condemnation. The NSL fundamentally changes the circumstances, which warrants the suspension of the Extradition Agreement and the MLA Agreement, as per Article 62 of the Vienna Convention on the Law of Treaties (VCLT).1 Considering 1 Article 62 of the VCLT provides: 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. … 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. 1 Simon Henderson, BComm/LLB/GDLP (ANU), LLM (Fletcher) [email protected] 28 September 2020 that the NSL breaches the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (the Joint Declaration), it also calls into question the extent to which Australian policy makers can confidently hold onto views that treaty agreements strengthen and improve Hong Kong’s autonomy, as outlined in the recent Inquiry into the Australia-Hong Kong Free Trade Agreement (the AHKFTA Inquiry). Suspension of the Extradition Agreement I support the decision of the Australian government to suspend the Extradition Agreement as outlined to the HKSAR government via diplomatic note on 9 July 2020. As discussed below in more detail, the decision is consistent with Article 62 of the VCLT in respect of a fundamental change in circumstances due to the introduction of the NSL. While this decision is a suspension, given that the PRC and HKSAR authorities have not indicated any change to the NSL, it will in effect end up being a termination. Unfortunately, there is no sign that the legal or political environment will shift direction any time soon that would otherwise warrant reconsideration of the suspension. It is a disappointing, but necessary outcome of the rapid deterioration of the human rights and rule of law environment in Hong Kong. It is helpful to briefly analyse the political and legal responses from PRC and HKSAR authorities regarding the suspension. Following the decision to suspend the Extradition Agreement on 9 July 2020, the following exchange took place at press conference with Zhao Lijian, the Chinese Ministry of Foreign Affairs Spokesperson: “Reuters: Out of concerns over China's national security law for Hong Kong, the Australian Prime Minister today announced the decision to suspend the country's extradition agreement with Hong Kong and extend visas for Hong Kong residents in Australia. Do you have any comment? Zhao Lijian: The Australian side's comments and measures are in serious violation of international law and the basic norms governing international relations. They constitute gross interference in China's internal affairs, and China doesn't accept it. We express strong condemnation and reserve the right to make further reaction, and Australia should bear all the consequences.”2 When a BBC journalist followed up and asked which laws Zhao Lijian was referring to, he could not name any. Such lines were also repeated by the PRC Embassy in Australia, which issued a statement on the same day stating: “China strongly deplores and opposes the groundless accusations and measures announced by the Australian government with regard to Hong Kong, which is a serious violation of international law and basic norms governing international relations, and a gross interference in China's internal affairs.”3 2 Embassy of the People’s Republic of China in the Commonwealth of Australia, ‘Chinese Foreign Ministry Spokesperson's Remarks’, 9 July 2020. Available at: http://au.china-embassy.org/eng/sghdxwfb_1/t1796668.htm. 3 Embassy of the People’s Republic of China in the Commonwealth of Australia, ‘Chinese Embassy Spokesperson’s Remarks’, 9 July 2020. Available at: http://au.china-embassy.org/eng/sghdxwfb_1/t1796361.htm. 2 Simon Henderson, BComm/LLB/GDLP (ANU), LLM (Fletcher) [email protected] 28 September 2020 Australia was one of several states who shortly after the passage of the NSL decided to suspend their extradition agreement with Hong Kong, including Canada4 and the UK.5 PRC authorities responded by stating that it had suspended Hong Kong's extradition treaties with Australia, Canada and the United Kingdom in response through action taken on 28 July 2020. In public commentary, Wang Wenbin, a spokesperson for the Ministry of Foreign Affairs, told a press conference that: "Taking China's newly enacted national security law for the Hong Kong Special Administrative Region as an excuse, Canada, Australia and the UK unilaterally announced the suspension of their extradition treaties signed with Hong Kong, which has grossly interfered in China's internal affairs and seriously violated international law and basic norms governing international relations.”6 These boilerplate lines are common responses from the PRC, and, as argued in my submission to the HKFTA Inquiry, are a now common feature of the Hong Kong government’s political rhetoric.7 Given such comments on Australia allegedly breaching international law, it is noteworthy that, as outlined in the National Interest Assessment, the Hong Kong government in its diplomatic note of 28 July 2020 did not provide any legal basis for the purported suspension, or otherwise reference the VCLT. No effort appears to have been made to provide an argument in response. In doing so, highlighting that such commentary from the PRC was legal puffery. Suspension of the MLA Agreement I support the decision of the Australian government to mutually suspend the MLA Agreement in a manner consistent with Article 57 of the VCLT, which allows for a treaty suspension at any time where there is mutual consent between both parties.8 As noted in the National Interest Analysis, following receipt of the diplomatic note of 28 July 2020 from the Hong Kong government that it wished to suspend the MLA Agreement, ongoing cooperation on MLA matters was unlikely to occur. Formalising this situation through suspension and review by JSCOT is the appropriate course to take. It is notable that, similar to the Extradition Agreement, the 28 July 2020 diplomatic note did not provide any legal basis for the purported suspension of the MLA Agreement. In a press conference on 28 July 2020, Wang Wenbin, indicated that it was a retaliatory action in response to decisions by Australia, among other countries, to suspend their Extradition Agreements: 4 Global Affairs Canada, ‘Canada takes action following passage of National Security Legislation for Hong Kong’, 3 July 2020. Available at: https://www.canada.ca/en/global-affairs/news/2020/07/canada-takes-action-following-passage-of-national- security-legislation-for-hong-kong.html. 5 The Rt Hon Dominic Raab MP, ‘Hong Kong and China: Foreign Secretary's statement in Parliament’, 20 July 2020. Available at: https://www.gov.uk/government/speeches/hong-kong-and-china-foreign-secretarys-statement-in-parliament. 6 As reported in ABC News, ‘China suspends Hong Kong extradition treaties with Australia, UK, Canada’, 29 July 2020.
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