Ekta Garg, a 3rd year student of Army Institute of Law, Mohali discusses China’s National Security Law and it’s implications on International Rule of Law

Pro-democracy activists in Hong Kong and Chinese Authorities have locked horns several times since the past few years over the alleged violations of the rights guaranteed to the Hong Kong Special Administrative Region (HKSAR).[1] Hong Kong, widely considered as Asia’s economic and financial powerhouse, owes its status to the ‘one country, two systems’ principle. However, the pro-democracy movement in Hong Kong received a death blow after the Chinese legislature passed the highly controversial National Security Law in the region. This article aims to analyse the legal standing of the legislation under the Hong Kong’s Basic Law and the Sino-British Joint Declaration in brevity, and why the act of passing such legislation is a blow at China’s commitment to International Rule of Law.

Hong Kong’s political history at the root of unrest?

Hong Kong became a British colony in 1842, and with the conclusion of the Treaty of 1898, the New Territories and surrounding islands region of Hong Kong was leased to the British for a period of 99 years ending July 1997. The years following the end of World War II saw the city turning into a reliable business hub attracting companies who feared communist mainland China. In order to preserve the economic prestige of the city, the Sino-British Joint Declaration was signed, establishing the ‘one country, two systems’ principle, thus ensuring Hong Kong’s capitalist system and other rights to the people of Hong Kong, for a period of 50 years following the end of the treaty in 1997. Since then, the city follows the Basic Law, the mini-constitution governing Hong Kong.[2] The Basic Law, since the handover, required the city’s legislature to enact a national security law on its own, but its failure does so, coupled with the escalated pro-democracy protests of last year, appears to be the reason behind such undue haste behind the move by the National People’s Congress.

The National Security Law

Wang Chen, Vice Chairman of the National People’s Congress Standing Committee, while speaking at the opening of the Annual Session of the NPC- China’s Parliament, stated that the proposed legislation seeks to criminalise the following acts[3]:

  • Secession
  • Subversion
  • Foreign Interference in Hong Kong activities.
  • Terrorism

He also stated that to achieve the proposed objectives, the new law would provide for the establishment of national security organisations in Hong Kong in order to “improve the enforcement mechanisms for safeguarding national security.”[4] The legislation would surpass the Hong Kong Legislature, and not only imperil the preferential trade status enjoyed by the region but also threaten the civil liberties of the Hong Kong citizens. In the wake of the escalated pro-democracy protests last year, and failed attempt at pushing the extradition bill, such an unprecedented move insinuates at Beijing’s aim to throttle the movement once and for all.

Position under the Basic Law

Article 23 of the Basic Law, the territory’s mini-constitution, specifically states that laws prohibiting treason, secession, foreign political organizations conducting political activities in the region, etc. shall be enacted by the Hong Kong Special Administrative Region “on its own.” After Hong Kong Legislature’s crushed attempt to bring the law in 2003.[5] Beijing decided to take the matter in its own hands. But, is it justified under the law? The answer is No. Article 23 not only imposes an obligation on the city’s legislature to enact such a law but is also indicative of the exclusive authority to do so, which, therefore, questions China’s authority to legislate on the subject.  

Hong Kong has a long-cherished Rule of Law in place that would suffer a huge setback with the implementation of the law. Article 18 of the Basic Law explicitly prohibits Beijing from applying national laws in the region, exempting the laws listed in the Annex III of the Basic Law, which shall be confined to those “relating to defense and foreign affairs” and other matters “outside the limits of the autonomy of the region”.[6] It remains far from clear how widely these words could be interpreted to include national security laws in their ambit. The proposed law has become the first National law with criminal provisions to be applied in the region, which raises concerns over China’s commitment towards the protection of the rights and autonomy guaranteed to the people of Hong Kong. 

A major concern that the legislation raises is the setting up of security enforcement institutions in the city. Article 22 prohibits setting up of Central People’s Government’s departments in the city.

Sino-British Joint Declaration of 1984 and the International Rule of Law

It is pertinent to note that the commitment of the Chinese Government towards the Sino- British Joint Declaration has been subjected to speculations in numerous instances, including when the Chinese Foreign Ministry stated that the Treaty “no longer had any practical significance.[7] The ‘high degree of autonomy’ promised to the region under the Declaration is deeply undermined with the said law. The following issues remain answered-

  • Whether the Chinese intelligence agencies in Hong Kong will have the authority to carry out enforcement activities.
  • Whether the Standing Committee of the National People’s Congress will have extra powers to interpret the Hong Kong court rulings on National Security. 
  • What is the scope and ambit of the ‘select cases’ that Beijing would have jurisdiction over?

Although the details are still few, the tailor-made security law would be left for interpretation at the behest of Chinese Security Organisations such as the Ministry of State Security, and the People’s Armed Police would endanger the rights to freedom of speech, expression, and free press.

On October 24, 2014, China reaffirmed its status as the ‘Builder of International Rule of Law’.[8] Strengthening the rule of law at the international level involves respect for the norms of international law. The above mentioned law is, therefore, a grave breach of the treaty raising concerns on the protection of the International rule of Law by Beijing. China acceded to the Vienna Convention on the Law of Treaties of 1969; the rule of pacta sunt servanda under Article 26 of the convention requires it to stay bound to the treaty and perform it in good faith.[9] Not only has China recognized Hong Kong’s right to democratization in the Basic Law, Customary International Law also provides for a ‘right to democratization.’ The move will undoubtedly have a severe impact on the ongoing Pro-Democracy Movement in the region. 

Conclusion

The people’s Republic of China must honor its commitment to the Sino-British Declaration and not interfere with the Rule of Law in Hong Kong. The fate of the pro-democracy movement in Hong Kong is now unknown, and bringing a tailor-made national security law contradicting the Basic Law not only jeopardizes the economic status and pro-democracy Movement in Hong Kong but also imperils Beijing’s status at the international level. Beijing must, therefore, review its move, which is gravely inimical to the International Rule of Law. 


Ekta Garg is a third year student from Army Institute of Law, Mohali.


[1]Kate Mayberry, ‘There’s never an endgame’: Hong Kong after a year of protest, Aljazeera, (June 16, 2020),  https://www.aljazeera.com/indepth/features/game-hong-kong-year-protest-200615104936779.html.

[2]Lily Kuo, A history of resistance: Key dates in Hong Kong’s Battle with China, The Guardian, (May 27, 12:53 BST), https://www.theguardian.com/world/2020/may/27/a-history-of-resistance-key-dates-in-hong-kongs-battle-with-china.

[3]Tony Cheung and Kimmy Chung, Two Sessions 2020: new law will ‘prevent, frustrate and punish’ acts in Hong Kong that threatens national security, top official says, South China Morning Post, (May 22, 2020, 02:52 pm), https://www.scmp.com/news/hong-kong/politics/article/3085617/two-sessions-2020-national-security-law-hong-kong-will.

[4]Id.

[5]Elson Tong, Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 National Security Bill, Hong Kong Free Press, (February 17, 2018, 22:30), https://hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/.

[6]Basic Law, Art. 18.

[7]“China says Sino British Joint Declaration on Hong Kong no longer has meaning, Reuters, (June 30, 2017, 4:51 pm), https://www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1

[8]Full text of Chinese FM’s signed article on Int’l Rule of Law(2), Xinhua, (October 24, 2014, 18:21), http://en.people.cn/n/2014/1024/c90883-8799769-2.html.

[9]Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, 1155 UNTS 331.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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