World

In Hong Kong Security Law, China Asserts Legal Jurisdiction over the Entire World

The Chinese and Hong Kong flags flutter at the office of the Government of the Hong Kong Special Administrative Region in Beijing, China, June 3, 2020. (Carlos Garcia Rawlins/Reuters)
The law could give Beijing new tools to silence its critics abroad.

The Chinese Communist Party’s new security law has criminalized any actions it deems to be subversion, secession, terrorism, and collusion with foreign entities in Hong Kong. The law spells an abrupt end to the political freedoms that Hong Kongers used to enjoy. Authorities Friday raided the offices of a research and polling institute associated with the pro-democracy camp just ahead of primaries in which it will choose its candidates for Legislative Council elections, and there’s certainly more to come. But there’s an additional reason to be wary of the law: It is Beijing’s assertion of legal jurisdiction over the entire world.

The text of the legislation’s Article 38 is blunt, and makes an unprecedented jurisdictional claim: “The Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.” If the provision is enforced as it is written, Hong Kong authorities could charge and prosecute individuals who have never stepped foot in the city but whom Beijing deems to have violated the law. “If mainland practice to date is any guide—and it is—then the definitions don’t matter that much,” wrote Donald Clarke, a professor at The George Washington University Law School, in an analysis. “Anything can be stretched as necessary to cover something done by the person being targeted.”

The CCP could thus use Article 38 to prosecute offenses that are illegal in China but legal in the West. Theoretically, Westerners could be arrested by security agents from Beijing’s new base in the city, then rendered to the mainland for trial — for the crime of speaking freely in liberal democracies. Or as Clarke put it, the CCP “is asserting extraterritorial jurisdiction over every person on the planet.

This is not just a theoretical concern, either, says Kevin Carrico, a senior research fellow at Melbourne’s Monash University. In 2015, Beijing abducted five employees of Causeway Bay Books, a store that sold works on political topics considered sensitive by mainland authorities, in violation of Hong Kong’s Basic Law. The kidnappings demonstrate the CCP’s desire for extraterritorial law-enforcement authority, says Carrico in an email, and the new law “just gives the false appearance of legality” to its efforts to secure such authority.

It’s not abnormal for countries to make legal claims that stretch beyond their borders or to punish their own nationals for crimes they commit abroad. But for a country to prosecute a foreigner for acts abroad would require harm to that country under widely accepted interpretations of international law. The other way that countries might claim jurisdiction over foreigners who live abroad is through extradition treaties. Without such treaties, says Terri Marsh, the executive director of the Human Rights Law Foundation, it would be very hard for China to reach non-Chinese citizens living in foreign countries. “China’s incursion into our sovereignty is a demonstration of why precisely other nations who are equally sovereign should not comply or cooperate in any way shape, or form,” says Marsh.

As it happens, some 20 countries have extradition treaties with Hong Kong, including several that have not inked such agreements with the mainland. The Inter-Parliamentary Alliance on China, a group comprising legislators from 13 countries, has in the wake of the new security law’s enactment led a drive for countries to cancel these treaties. In recent days, Australia and Canada have suspended theirs, earning Beijing’s ire, and the United States could soon follow suit. Others, such as the Netherlands, have warned their citizens against traveling to Hong Kong.

Although most countries will not extradite an individual based on political charges, Jerome Cohen, an expert in Chinese law at New York University School of Law, points to Beijing’s history of concocting false charges of conventional crimes, such as tax evasion, to target dissidents. Just this week, Xu Zhangrun, a prominent critic of the CCP, was arrested in Beijing on prostitution charges. Fake allegations won’t be a problem in countries with robust justice systems, such as France, but Cohen says he’s wary of countries that have voted with China on the U.N. Human Rights Council, and even of certain European countries.

In addition to the risk of extradition, the high concentration of foreign journalists and businesspeople in Hong Kong would make it “a very convenient target, if China wanted to do something to hold some Americans hostage,” says Ho-fung Hung, a professor at Johns Hopkins University. He notes the 2018 detention of two Canadian citizens in retaliation for Ottawa’s arrest of Huawei CFO Meng Wanzhou. While hostage diplomacy had already existed as a possibility on the mainland, Americans critical of the Chinese Communist Party have generally been denied visas to visit China, ending up in Hong Kong instead. They used to enjoy immunity from Beijing’s reach there, but with the security law, Beijing could well detain and try them for speaking against the CCP in other countries. Carrico offers a dire warning: “In traveling to China and Hong Kong today, one is in effect taking the same type of risks as someone travelling to Pyongyang.”

The danger is particularly acute for Taiwanese individuals and organizations. Leaders in Taipei have watched the Hong Kong crackdown with apprehension, fearing that the CCP will turn its focus to them next. Carrico notes that Hong Kong, which despite its former autonomy from the mainland did not diverge from Beijing’s official position on Taiwan, had until now allowed Taiwanese organizations to operate in the city. But “the [national-security law] means the end of that, and if I was in any way linked to the Taiwanese government and living in Hong Kong right now, I would leave immediately.” In fact, the law subjects foreign and Taiwan-based organizations with offices in Hong Kong to onerous regulations requiring cooperation with the city’s police commissioner. According to new rules released this week, the city police can even ask staff at “foreign and Taiwan political organizations” in Hong Kong to provide personal and financial information about their organizations.

It is important to note that until Hong Kong’s rulers release further guidelines on implementation of the law, the precise nature of the danger it poses will remain unclear. Cohen predicts that Article 38 will be interpreted more narrowly than its wording would suggest. “Now even China’s regular domestic criminal law doesn’t go as far as this new national security law could be interpreted,” he says, noting that the mainland’s criminal code would not lead to prosecutions of foreigners over political speech legal in their own countries. He thinks that Article 38’s expansive wording was the result of a time crunch faced by those responsible for drafting it. But he is careful to emphasize that he’s only making a prediction, and that the law is already intimidating some activists into silence. “They are already being deterred, not only in Hong Kong, but around the world,” he says.

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