Democracies' Own Freedoms at Risk - SOAS China Institute

//Democracies’ Own Freedoms at Risk

Democracies’ Own Freedoms at Risk

The High Court, Hong Kong. – Photo credit: LN9267 (Wikimedia Commons) / CC BY-SA 4.0

By Sophie Richardson | 04 April 2024

Fair warning: having this article in your possession might be considered a breach of Hong Kong’s new law.

 

That’s because, according to the Hong Kong government’s latest law, the “Safeguarding National Security Ordinance,” (also known as Article 23), possessing documents authorities consider to be “of incitement [sic] nature” is a crime. But it’s not clear what’s considered seditious, or even whether merely reading or discussing an idea can trigger legal action.

 

The law contains other Orwellian restrictions: engage in what the authorities deem to be problematic “external interference,” another dangerously vague term, and you could face a sentence of 14 years. The Chief Executive gets to decide what constitutes a state secret. The whole law is meant to apply extraterritorially, and it’s almost impossible to know definitively what conduct would not violate it.

 

Hong Kong’s new law explicitly claims adherence to the International Covenant on Civil and Political Rights (ICCPR), but in fact obliterates those protections.  The ICCPR guarantees people rights ranging from self-determination to fair trials and the presumption of innocence, and from the freedoms of speech and assembly to the right to political participation. And Hong Kong people are guaranteed these rights, ironically by way of the 1984 Sino British Joint Declaration, which set out the terms of the territory’s transfer from British to Chinese control in 1997, and the Basic Law, Hong Kong’s quasi-constitution. Ironically the Chinese government itself signed the ICCPR in 1998, but has since refused to ratify it, continuing to claim it needs more time to study the matter.

 

It’s remarkable to think back on the Sino British Joint Declaration, in which Chinese authorities committed to a half-century of “a high degree of autonomy” for Hong Kong people, and to the Basic Law’s “ultimate aim” of “universal suffrage” for them—ideas they would and will not countenance in the mainland. Beijing likely agreed to this because doing so was politically expedient, not because they had embraced their legal obligations. And when it became politically inconvenient for Beijing—when Hong Kong people repeatedly refused to back down and give up their legally guaranteed rights—Chinese Communist Party General Secretary Xi Jinping tore up those international legal obligations, turned police against protesters, and sent democrats to jail or exile. He and his regime set about gutting Hong Kong’s governance, legal system, and politics, rendering them a mirror of Beijing’s, imposing a rights-devastating “national security” law in June 2020. That this newer law, Article 23, was introduced, passed, and put into effect with no real public consultation by a “patriots only” legislature in a matter of weeks speaks to the transformation.

 

Throughout the post-1997 period democracies rhetorically condemned the worst encroachments on Hong Kong people’s human rights. But despite mounting evidence of deepening repression, they rarely moved beyond exhorting Beijing to uphold its obligations under international law.  Only the United States has taken the step of imposing sanctions for human rights abuses. Twice a year since the 1997 handover, the UK Foreign Office has published a report on developments in Hong Kong; these are a fairly meticulous record of Chinese authorities’ deepening threats to human rights in the territory—and a powerful indictment of the UK’s failure to act. The latest report, published in June 2023, concludes with ever so slightly tougher language—describing Beijing as being “in a state of ongoing non-compliance with the Joint Declaration.”  One assumes Xi, or John Lee, Hong Kong’s Chief Executive, remain unconcerned, particularly as international businesses appear set to stay put in the territory.

John Lee Ka-chiu. – Photo credit: Cypp0847 (Wikimedia Commons) / CC BY-SA 4.0

 

In fact it is the United Nations Human Rights Committee—the body tasked with upholding and reviewing governments’ compliance with the ICCPR—that has offered up searing criticism of Hong Kong authorities’ assault on human rights and civil liberties, and set out corrective measures. In its July 2022 assessment, the Committee explicitly called on Hong Kong to repeal the June 2020 “national security” law precisely because of its multiple and serious points of tension with the ICCPR. It also excoriated Hong Kong authorities for failing to confirm that people from Hong Kong would not be prosecuted under the law for contributing to or cooperating with UN experts for that review.  UN High Commissioner for Human Rights Volker Turk decried Article 23 as “a regressive step” but did not urge any remedial action; six UN human rights experts have published a detailed critique of the new law, highlighting its lack of conformity with the ICCPR and calling for a “thorough review.”

 

Beijing’s assault on internationally guaranteed human rights and law merits a coherent, substantial response; the failure to impose consequences for obvious and significant transgressions is how people in Hong Kong—and across China—find themselves confronting deepening repression. And laws like the “Safeguarding National Security Ordinance,” which authorities state they intend to apply extraterritorially, make clear Beijing’s aspirations to threaten rights globally.

 

Democracies should support the establishment, as urged in an unprecedented statement by UN human rights experts in June 2020, of a UN special rapporteur focused on Chinese government human rights violations—doing so is doubly effective for challenging Beijing’s increasing influence across the UN human rights system, and helps amplify the work of the Human Rights Committee.

 

Democracies should publicly explain to companies with a presence in Hong Kong that there is no recourse if the firms find themselves at the sharp end of “national security” investigations. Those governments can also offer far more efficient pathways to citizenship in their countries for those fleeing Xi’s repression. As important, the people who have worked tirelessly to document his regime’s encroachments—many of whom have paid a high price for doing so—deserve seats at democracies’ policy tables in debating further responses.

 

Hong Kong and Beijing authorities are likely to deem such steps as treason. Democracies’ failure to respond with real-world consequences to Xi’s assault on international human rights law helped enable these “national security” laws. That his regime’s attacks on electoral systems in democracies today dominates headlines suggests this is no longer a matter of what happens merely in Hong Kong. Democracies’ own freedoms are also at risk.  

Sophie Richardson is a longtime activist and scholar focused on Chinese government human rights violations. Currently a Visiting Scholar at Stanford University’s Center for Democracy, Development, and the Rule of Law, Richardson oversaw Human Rights Watch’s research and advocacy on China from 2006-2023. She holds a PhD in political science from the University of Virginia, and is the author of China, Cambodia, and the Five Principles of Peaceful Coexistence (Columbia University Press, 2009).

The views expressed on this blog are those of the author(s) and are not necessarily those of the SOAS China Institute.

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