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How Should Democracies Respond to China’s New National Security Law for Hong Kong?

A ChinaFile Conversation

July 1 will mark 23 years since Hong Kong’s return to Chinese sovereignty. Each of those years—and many that preceded them—has seen its share of disquiet over the future of the territory’s way of life and about the resilience of “one country, two systems,” Beijing’s shorthand for its professed acquiescence to keeping its hands off Hong Kong’s democratic political institutions. But never has the sense of alarm, both within Hong Kong and internationally, been more acute than on this year’s anniversary. Today, Xi Jinping signed a new sweeping national security law for Hong Kong, drafted and voted on in secrecy by China’s National People’s Congress, circumventing Hong Kong’s own legislative process. While the text of the law calls for the respect and protection of human rights, as well as protecting Hong Kong’s regulations related to “freedom of speech, media, publishing, assembly and protest,” it is widely feared that its capacious definitions  secession, subversion,  terrorism and collusion with “outside forces” could be broadly interpreted, as they are in the mainland, in a manner that would effectively criminalize the exercise of Hong Kong’s political and civil liberties.

Over this past year of protests, Chinese government officials have referred to protesters as “no different to terrorists” and often claimed (without evidence) that their actions and even beliefs were the work of “foreign forces” who wish China ill.

06.13.20

Is Hong Kong about to Get Its Own Foreign NGO Law in the Name of ‘National Security’?

Thomas Kellogg & Alison Sile Chen
On May 28, China’s National People’s Congress (NPC) issued a much-anticipated Decision on preservation of national security in Hong Kong. The key paragraph in the short document authorized the NPC’s Standing Committee to “draft laws related to...

Governments around the world—not to mention many of Hong Kong’s own elected officials—have criticized the resolution and predicted the new law would accelerate the erosion of Hong Kong’s freedoms to the point of collapse. The United Kingdom offered refuge to Hong Kong citizens, Taiwan has promised “necessary assistance” to Hong Kong activists, and the United States has begun to revoke Hong Kong’s special trade status and looks poised to impose sanctions against Hong Kong’s police and other Chinese officials.

How much leverage do countries have to prevent the further erosion of Hong Kong’s special status and how can it be most effectively deployed? What position should your own country adopt on Hong Kong’s future? What specific actions should it take and why would these be effective? —The Editors

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Recent developments in Hong Kong are a sad sight, and Germany’s response isn’t much brighter. Sure, German politicians from Chancellor Angela Merkel downwards went through the motions of voicing concern about Beijing’s handling of the protests and the subsequent dismantling of “one country, two systems.” Business associations put out statements to the same effect. It’s not that Germany stayed quiet, but it didn’t make much noise, either.

For whatever comfort it may be, no one in Berlin appears to be content with the German position. There is a deep sense of frustration. Hong Kong is yet another example of Europe’s largest economic power trying to get away with arguing it is too small to have any significant leverage against China, while knowing full well it is also too big to excuse itself on the basis of geopolitical irrelevance.

But optimists feel that Germany may finally shift gears. The COVID-19 crisis convinced Berlin to let go of long-held principles for EU finances in order to enable a massive 750 billion Euro recovery plan. This newly found commitment to Europe (together with the twilight of the Merkel era and elections in 2021) may be what it takes for Germany to finally revise its strategy towards China—a step many in Berlin know is overdue. And since strategies are not drawn up on white paper, but emerge from pressing policy challenges, Hong Kong may just be the place to start.

Germany has been a very loyal partner to China. Loyal to the extent of sometimes even undercutting European unity, such as by resisting pressure to lead the way or at least not stand in the way of a joint European approach to 5G. Now, Germany should allow the EU to take the lead. In late June, at the digital EU-China Summit, Commission President Ursula von der Leyen made it clear that the EU considers Beijing’s national security legislation to be “not in conformity with the Hong Kong Basic Law and China’s international commitments.” European Parliament went as far as adopting an (unbinding) resolution that calls on member states to file a case against China’s government before the International Court of Justice for allegedly violating international agreements.

One can’t realistically expect Germany to go that far. But the German government could decide to bring up Hong Kong in all conversations with Chinese counterparts. After all, “one country, two systems” always assured the world and global businesses that China would run parallel systems: a domestic authoritarian one, but also one in sync with international standards. Hong Kong’s autonomy was the canary in the Chinese coal mine, and by killing the canary Beijing undermines international trust in all other areas of engagement, too.

Hong Kong is not a solitary issue. Germany should dare to connect the dots and let China see that the emerging picture looks like one big warning sign! This may not only be the best Germany can do for Hong Kong—but the best it can do for itself.

When Taiwan President Tsai Ing-wen visited the former Hong Kong Causeway Bay Bookstore after it opened in Taipei this Spring, she wrote a post-it message for the store. In the spirit of Hong Kong’s famed “Lennon Walls,” it reads: “A Free Taiwan sustains the freedoms of Hong Kong” (“自由的台灣撐住香港的自由”). This simple yet powerful message should be the overarching principle that guides Taiwan’s policy towards Hong Kong, especially at this critical juncture when Beijing’s June 30 enactment of the national security law for the Special Administrative Region threatens to crush the city’s cherished values and its rule of law. To live up to this principle, Taiwan can and should provide a safe space—literally and figuratively—for Hongkongers who strive to preserve the liberties and the culture of their home.

Taiwan as a safe space means that Hongkongers who are persecuted for their political opinion can find refuge in Taiwan. Recently, the Taiwan government announced a “humanitarian assistance action plan for Hong Kong,” which promises to offer assistance to Hongkongers who want to settle in Taiwan, including those “whose safety and liberty are immediately threatened for political reasons.” This is a commendable step, but the policy must be institutionalized for the long term, offering Hongkongers asylum protection that is in accordance with international humanitarian and human rights law, as I have argued elsewhere. This is imperative given that Taiwan does not have a refugee law and that, without fundamental protection that would be required by legislation, the never-ending changes in Taiwan’s politics are likely to result in manifold uncertainties for Hong Kong asylum-seekers.

Taiwan as a safe space also means that Hong Kong’s culture of resilience and resistance to oppression must be preserved in Taiwan, while such space in Hong Kong is shrinking. There have been a few recent examples of such preservation in Taipei, including the opening of Lam Wing-kee’s Causeway Bay Bookstore and a current exhibition of graphic arts about Hong Kong’s protests. The innovative restaurant Protection Umbrella, opened in Taipei by newly-arrived Hong Kong protesters, is another example. Many in Taiwan would welcome more of these initiatives that enable Taiwan’s society to continue to learn about Hong Kong and its struggles.

Taiwan’s executive branch and legislature, both currently dominated by the Democratic Progressive Party (DPP), are understandably cautious about handling the issue of Hong Kong because of an already strained relationship with Beijing. They are also probably waiting for the U.S. government to take the lead in adopting an even stronger position vis-a-vis Hong Kong. The DPP, for instance, disapproves of pushing asylum legislation for Hongkongers, claiming—unconvincingly—that the existing legal framework is sufficient. It is indeed a fine line for the Taiwan government to walk politically. Beijing has denounced President Tsai’s humanitarian plan, and its newly-enacted national security law punishes collusion with “foreign or external forces,” the latter of which obviously refers to Taiwan.

Yet, it would be a mistake not to translate President Tsai’s pledge of support into robust concrete action. Compared with other countries, Taiwan is in a unique position to understand Hong Kong’s struggles and help defend the space for their shared values. Taiwan society itself benefits from standing in solidarity with Hongkongers, given the common challenges imposed by an aggressive Chinese leadership.

We have often heard the terrifying mantra, “Today’s Hong Kong, Tomorrow’s Taiwan.” The way to reverse this is to do everything possible for the opposing mantra, “Today’s Taiwan, Tomorrow’s Hong Kong.”

The manner in which the new national security law was passed is a worrying indication both of its content and how oppressively it is likely to be applied. More sinister than the fact that Beijing imposed it on an unwilling Hong Kong was the extreme secrecy with which it was rushed through the National People’s Congress: no details were published, no public consultation invited. Even Hong Kong’s delegate to the National People’s Congress Standing Committee who was shown the proposed law was not allowed to have his own copy of it. It could be judged a criminal offence to protest against its provisions.

What other countries should do about this breach of an international treaty and of the trust of the people of Hong Kong is more difficult. The law was rushed through to take effect from June 30, 2020, but there is still much to gain—or lose—in how it is exercised, and it is possible to condition that through the international response: do nothing and it will be worse.

This legislation is only in China’s interest if we take a very narrow view of those interests. If Hong Kong supported Beijing and the rough hand of law and order, as Beijing claims, why did 90 percent of seats go to democratic candidates in last November’s district elections? This is not a population without views or choices.

A heavy-handed application of this law is likely to lead to the deadening of a once vibrant and cosmopolitan city. If people exercise their options where they can, they may choose to relocate to places where they need not watch their words with extreme care, sever relationships with people who might be judged discontented, or fear the knock on the door or the intentions of strangers in the street. The law has already exacerbated the loss of trust in China that began before the global pandemic and has deepened since. “Wolf warrior diplomacy” may play well at home, but it dramatically shrinks the space for politicians in Europe and elsewhere to collaborate with China. The truth is that China still seeks a benign environment for its expanding international operations; still needs international cooperation and foreign investment, access to markets, and cooperation on climate change; and still desires international respect. China creates linkages between politics and economics to coerce or punish foreign companies. Others will be tempted to follow China’s example.

The answer to the question—what leverage do democratic countries have over China in Hong Kong—is, on the face of it, pretty clear. Hong Kong is already Chinese sovereign territory, albeit under a separate form of government until 2047. Chinese troops are stationed there. The city’s political and business elite are in Beijing’s camp (not least because they have learned there’s a price to pay if they aren’t). Hong Kong’s economy depends on China’s like no other place in the world. Even the territory’s water is largely supplied from the mainland.

Democratic nations, on their own or collectively, have minimal leverage to challenge China directly on any of these fronts. The U.S., China’s only peer competitor, has already declared that Beijing is not abiding by its commitment of “one country, two systems.” But it only carried through on a threat to punish Beijing for that this week, by beginning to suspend Hong Kong’s preferential trading status. Washington knows this is a trigger with limited utility, and thus has been cautious to use it. Beijing itself has already factored such retaliation into its calculations in any case. Otherwise, all Washington has done is threaten to block visas for Chinese officials who have undermined its autonomy, without naming them.

So where does that leave other, smaller nations? The United Kingdom, as the co-signatory to the 1997 handover agreement, has a special role to play, which it finally seems to be acknowledging. Other like-minded nations, such as Canada, Australia, and New Zealand, have a duty to stand by them. So far, these nations (sometimes without New Zealand) have issued statements jointly condemning Beijing’s abrogation of “one country, two systems.” The terms of this criticism should be clear. This is not gratuitous interference in China’s internal affairs but a legitimate complaint about Beijing’s breach of an international agreement.

Of course, critical statements may have little impact in the short-term, but that is not the point. Even if other countries cannot constrain every Chinese action in Hong Kong, they can try to ensure that they come at a cost. On top of the core “Anglosphere” nations, every effort should be made to bring the key swing states, like France, Germany, and other European nations, on board, along with Japan. Beijing behaves at the moment as though it cares little for reputational damage. The more nations that can be marshalled to take a critical stand on Hong Kong, the greater the cost to China’s standing in the world, and the more they will take notice.

Hong Kong’s circumstances are, of course, unique, as is its status within China. But its people are not alone in struggling to push back against Beijing. In different ways, the U.S., Canada, India, Australia, Japan, and other countries are all trying to renegotiate their ties with China. The Hong Kong narrative should become part of a broader global demand for adjustments to Beijing’s behavior. Even the biggest of the second-tier powers, like Japan, openly admit they cannot handle China on their own. Hence, their continued investment in ties with the U.S. Targeted criticism, and unity, are the only way to begin to put pressure over Beijing on Hong Kong.

The “one country, two systems” concept that governed the handover of Hong Kong in 1997 was a testimony to the ideological flexibility, and one might say, creativity, of Deng Xiaoping’s China in the 1980s when the formula was devised and negotiated. It was also a powerful symbol of the hopeful expectations that the People’s Republic of China (PRC), unlike the other Leninist power of the day, the USSR, could overcome political rigidity and find a way to integrate itself into, indeed “converge” with, the liberal international order. The world seemed flat, for a while.

However, Deng’s contradictory formula could not survive the sharp turn back towards Leninist orthodoxy under Xi Jinping. For Xi, as for Mao, “the Party leads everything” and cannot tolerate autonomy, let alone a high degree of it. The fundamental contradiction of the arrangement, until recently papered over by “convergence” optimism, resurfaced again as conflict between the PRC’s one-party system designed to control the population top-down and the free and decentralized society in Hong Kong.

It is no coincidence that the demise of the “one country, two systems” concept has been brought about by the issue of “state security,” often (mis)translated in English as “national security.” In Leninist systems, “state security” does not mean the security of the “nation” or the population at large, but rather that of the state itself, conflated with the Party into a Party-state. The security of the Party-state does not necessarily align with that of its citizens; in fact, it mostly implies the security of the Party from the country’s own citizens. There is a reason why the PRC spends more on internal security than on national defense. In Hong Kong, the meaning of state security manifested itself in a graphic way in 2015 with the kidnapping to the mainland of the five booksellers whose publications were deemed offensive to the Chinese Communist Party leadership.

Extending PRC state security into Hong Kong puts an end to the city’s autonomy and its separate way of life. There doesn’t seem to be much the outside world can do about it. That chance was missed back in the 1980s during the Sino-British negotiations, and again in the 1990s during the Most Favored Nation status and WTO debates, when the democratic world still enjoyed enough leverage to try and rectify China’s ways. After more than two decades of unchecked behavior, we now have to live with the bully we’ve helped to create. Hong Kong in particular has been rendered effectively defenseless.

Offering refuge to fleeing Hong Kong residents can help save individuals or groups at risk. More generally, we should let Beijing know that we may not be able to counter its actions in Hong Kong today, but they further undermine the goodwill and the trust the PRC once enjoyed. China may not be given the benefit of the doubt, next time around. What that means, if anything, will depend on the actual historical circumstance of the next time. This time, repression wins and freedom loses.

The new security law for Hong Kong enacted by the National People’s Congress challenges the people of Hong Kong and China’s international partners in multiple ways. Most importantly, it brings the end of the “one country, two systems” principle closer. Second, the question of whether the People’s Republic feels bound by international law cuts to the core of its relationship with the world. There is not much the European Union, which will be under the German Council Presidency starting July 1, can do, but there are some things it can.

The 1984 agreement on Hong Kong’s return to Chinese sovereignty was a gamble for both sides. The Chinese Communist Party (CCP) likely believed that by 2047 Hong Kong would be naturally absorbed into a richer and more powerful China, while the UK hoped China by then would have reformed enough to allow Hong Kong citizens to maintain their governmental, legal, and cultural freedoms. Neither foresaw the People’s Republic of China’s (PRC’s) turn to even more rigid authoritarianism, nor that Hong Kong’s younger generations would find their liberal governance system too valuable to surrender.

As a consequence, the CCP strove (in vain) to turn Shanghai into the new financial center of Asia, integrate Hong Kong economically into the “Greater Bay Area” of the Pearl River Delta, and erode Hong Kong’s freedoms by adapting school curricula to mimic that of the mainland, kidnapping critics to put them on trial in the PRC, and supporting the passage of a law that would have allowed the extradition of Hong Kong citizens to the PRC. The security law then is only another step in that strategy.

The response of the citizens of Hong Kong can be seen in their ever-more-desperate protest movements. Whether Beijing will succeed is hardly an open question, despite whatever happens in the streets and whatever criticism comes from abroad. Beijing has the means, and it has proven in the past that it has the will, to put down opposition with whatever it takes. Foreign business will try to survive; HSBC has already spoken in favor of the new law. Foreign governments may apply partial sanctions, but not put their economic relationship with China at risk. It all amounts to an almost unmitigatable tragedy for the people of Hong Kong.

However, the 1984 agreement has been deposited with the United Nations. It is international law. Beijing doesn’t simply challenge it, but breaks it. Not as blatantly as Putin’s annexing of Crimea, but the question here is to what extent China can be trusted when it signs future treaties. Raising this concern with Beijing is not just an option, it is a must. It will have more than symbolic value if, as the European Parliament voted in favor of, EU members bring it to the International Court of Justice. Their position will be further strengthened if they declare that the next agreement they conclude with Beijing must contain a safeguard clause leading to automatic sanctions in the case of a breach. China’s leaders would oppose the very idea—but they would see that challenging the international system does have consequences.

Doing this might even have an impact on the way Beijing handles Hong Kong now, possibly leading it to back away from the security law in some ways. Thus, at the very least, the tragic perspective the people of Hong Kong face today might be mitigated.

As Hong Kong marks the 23rd anniversary of the handover to the People’s Republic of China, many will not find cause to celebrate. After stalling and dragging its feet for many years on the democratic promises enshrined in Hong Kong’s Basic Law, Beijing has come to the conclusion that withholding universal suffrage was not enough to constitute the kind of control over Hong Kong that Chinese Communist Party (CCP) leaders want to exert.

The events of the past 12 months have shown already that there is no autonomy as far as the Hong Kong Special Administrative Region administration is concerned. The Chief Executive, Carrie Lam, hasn’t dared take a single step without first asking permission from Beijing. Hong Kong’s police force has acted with impunity based on its high level of loyalty—not to the citizens of Hong Kong and the Basic Law, but to the mainland authorities. The new so-called National Security Law imposed on Hong Kong, however, will also deconstruct the autonomy of Hong Kong’s judiciary. It will sweepingly undermine the liberties granted in the Basic Law and it will force Hong Kong’s public servants to practice loyalty not only to the citizens of Hong Kong, but also to mainland authorities, thus to the CCP.

Deliberations within the pro-Beijing camp in Hong Kong over whether candidates should be forced to pledge allegiance to the national security law in order to be allowed to run for the upcoming Legislative Council elections clearly signal that the purpose of the new law certainly is not to deal with “a small number” of so-called “terrorists,” but to completely suppress the strong democracy movement in Hong Kong. Beijing, obviously, fears the virus of love of liberty more than the coronavirus. Last years’ huge demonstrations and the landslide victory of the Democratic camp in the district council elections have convinced CCP leaders that doubling down with oppression is their only answer.

Western governments, UN Special Rapporteurs, and many democracy defenders and parliamentarians have voiced strong criticism of the new law. The European Parliament voted for a strongly worded resolution with an overwhelming majority. The question remains whether we can muster the strength of following our words with action. We will certainly regret if we don’t. Steps to be taken range from calling on the UNSG to nominate a Special Envoy for Hong Kong and raising Beijing’s breach of binding international obligations like the Sino-British Joint Declaration and the International Covenant on Civil and Political Rights by taking China to the International Court of Justice, to Magnitsky-style sanctions, to creating a lifeboat mechanism particularly for young Hong Kong democracy activists. The bottom line has to be: Even as the Chinese Party-state moves forward with its plans, it must understand that this will come with a price. CCP leaders are able to calculate rationally. Reigning in their aggressive policies will only be possible if they are shown the price tag.