By Jerome A. Cohen
1. What may be driving Beijing’s draft Decision?
For the past five years, perhaps because I focus on Beijing’s domestic repression, I have inevitably accentuated the negative in appraising assessments of the PRC’s rising power. The other day I wrote that the Party’s new NPC action to authorize operation of its secret police in Hong Kong is an act of desperation. But I would not characterize it as foolhardy, as have some.
The situation in Hong Kong, from Beijing’s viewpoint, was steadily getting worse, despite the pause in protests occasioned by Covid-19. If allowed to fester without any attempt to suppress it, prospects for the autumn promised to see Hong Kong move further out of PRC control. Unless something was done, democratic politicians were likely to win the September Leg Co election. Measures taken to suspend or postpone the election or to again prevent popular candidates from seeking election or taking office would be sure to inspire huge crowds to reenter the streets if, as appears likely, the virus no longer inhibits public protests by then. Even if pro-Beijing politicians won the election and continued to control Leg Co, they could not be counted on to enact Article 23 legislation, as long experience has demonstrated. Bold central action now, while fear of the virus keeps people at home, might well be the least unfavorable option open to the leadership.
What Beijing has done is to reverse last summer’s humiliating defeat over its failure to have Hong Kong enact extradition/rendition measures that would have transferred some people in Hong Kong to the Mainland’s system of arbitrary detention and criminal injustice. It has done so by taking the Mainland’s system of arbitrary detention and criminal injustice to all of Hong Kong! Article 4 of the draft NPC Decision promises the establishment in Hong Kong by “relevant national security organs” of “agencies” that will improve “enforcement mechanisms” to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. The “final solution”, to invoke a sinister Hitlerian term, is the acceleration of Hong Kong’s transformation into “another Chinese city” long before 2047. This is already proving to be a costly gamble for Beijing, but nothing ventured, nothing gained!
2. What do we know about the process regarding the draft Decision?
Some interesting relevant tidbits have emerged in recent hours. Apparently the law or laws that the Standing Committee is responsible for drafting in accordance with the not yet approved Decision are well under way.
But has the Basic Law Committee that was established to advise the Standing Committee already been consulted about the text? Prof. Albert Chen of Hong Kong University Law School, a brilliant scholar who has been a member of the Basic Law Committee since its inception, has been quoted in the press as predicting that the anticipated legislation will have broader scope than Article 23 and has appropriately cautioned against the danger that the text may easily be expanded to suppress “political opponents, dissidents, media, educators, intellectuals and so on”. The draft Decision reportedly came as a surprise to him, and I have seen no indication that the Basic Law Committee has yet been convened.
Various pro-Beijing Hong Kong political figures have recently spoken out with ostensible knowledge of the contemplated legislation, but with widely varying predictions of what offenses it will cover. Yet, like the Politburo leader responsible for Hong Kong affairs, they offer assurances that the contemplated legislation will be surgically applied to affect only its supposedly circumscribed targets, allegedly only a small group.
3. What are the legal and human rights implications?
Here’s an excellent analysis from the NPC Observer of the Draft NPC Decision on Hong Kong. It highlights the serious legal challenges that the draft Decision presents to a conventional interpretation of the Basic Law and also the anticipated rationalizations for overcoming them, at least to the satisfaction of pro-Beijing advocates. In the end, it concludes, as I did in a brief earlier blog, that, given the structure of the PRC constitutional/legal system and the provisions of the Basic Law, the NPC Standing Committee has the power to say that the law is whatever it wishes it to be. So much for the protections supposedly guaranteed by PRC domestic law, including its reign over Hong Kong!
This does not relieve the central government and the Party of charges that the Decision and the legislation will violate the PRC’s obligations under the 1984 UK-PRC Joint Declaration on Hong Kong, including its pledge that Hong Kong will continue to be protected by the International Covenant on Civil and Political Rights (ICCPR) until the Joint Declaration expires in 2047. Nor does it free Beijing from charges that the Decision and legislation may result in violations of the PRC’s broader international human rights obligations.
Apparently to provide assurance that the agents of the Ministry of National Security and the Ministry of Public Security who will now be authorized to openly operate in Hong Kong will not run amok and usurp the role of the Hong Kong police, it has been suggested that the Hong Kong government may revive the Special Branch unit of the local police that was abolished before the 1997 Handover by the UK to the PRC. The vague language of the draft Decision foreshadows this.
Knowledgeable observers will take such assurances for what they are worth.
4. What is to be done?
What is to be done in response to Beijing’s sudden mortal wound to Hong Kong’s promised “high degree of autonomy”? People should read this excellent statement by Human Rights in China and its very able executive director, my NYU Law School colleague Professor Sharon Hom. It provides the best answer to date. This should stimulate further creative thinking. For example, an effort could be made to cancel or at least postpone the 2020 Olympics in China.
Saturday’s Washington Post editorial suggests that selective resort to certain U.S. sanctions made available by existing American legislation would seem desirable and that the sanctions that would be authorized by a new proposal to be considered by the Senate would add to the possibilities without invoking the nuclear option of entirely eliminating Hong Kong’s special trade and investment status. As the Magnitsky Act experience shows, however, such sanctions are never invoked against the one PRC official we all know should be the target — the great dictator.
But political and diplomatic measures can be taken at the G-7 and other major forums. Despite the PRC’s veto in the Security Council, even U.N. meetings and those of other international institutions can become occasions for multilateral, not merely unilateral, denunciations.
Surely, Hong Kong’s protection under the ICCPR should be brought into play. But all this requires effective allied cooperation and, above all, vigorous activism on the part of the UK, which is the treaty partner whose expectations are being violated by the PRC.