Hong Kong’s National Security Law: What is it and how can a new administration change America’s role in assisting Hong Kong?

“We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end.”[1]

On June 30, 2020, China’s National People’s Congress Standing Committee (NPCSC) passed the National Security Law (NSL).[2] The NSL represents one of the most far-reaching seizures of power from the semi-autonomous city of Hong Kong.[3] Since its enactment, a question that bears asking is whether China’s newly acquired power will ever be relinquished so that democracy can be restored to Hong Kong. Drawing from George Orwell’s quote above, this sweeping act and its chilling effects seem to be only the beginning of consolidating China’s power.[4] While Foreign Ministry Spokesman Zhao Lijian characterized the NSL as a fundamental solution to uphold national security and social order,[5] senior China researcher at Human Rights Watch, Maya Wang, has described it as nothing more than a roadmap for repression.[6]

The National Security Law criminalizes four categories of offenses: secession, subversion, terrorism, and collusion with foreign forces.[7] It applies to anyone who violates it and conviction can result in life imprisonment.[8] For a law with such severe penalties, its language is vague and leaves much room for interpretation.[9] While legislative interpretation is not unfamiliar to the United States, the provisions of this law could be interpreted in a manner that criminalizes peaceful political expression.[10] This potential for abuse has already been witnessed throughout Hong Kong. On July 1, 2020, as part of an annual pro-democracy rally that marked the handover of Hong Kong from the UK to Chinese rule, Hong Kong police made their first arrests under the NSL.[11] One twenty-four year old man, accused of driving his motorcycle into police officers while holding a pro- independence flag, was charged with inciting secession and engaging in terrorist activities.[12] Nearly six months later, on January 6, 2021, Hong Kong police arrested fifty-three pro-democracy officials and activists. Among the fifty- three arrested were former Legislative Council members, district councilors, a former law professor, and even an American Civil Rights lawyer.[13]

Political leaders from around the globe have come out to condemn the NSL and the ensuing arrests.[14] Under the Trump Administration, the United States has taken several measures to signal to China that it will not tolerate their anti-democratic actions.[15] Measures include the Hong Kong Autonomy Act and Executive Order 13936 (EO).[16] The Hong Kong Autonomy Act authorizes the president to impose sanctions on individuals and financial institutions that are responsible or work with those responsible for the erosion of China’s fulfilment of its obligations under the Joint Declaration.[17] The EO declared that the Hong Kong situation constitutes a national emergency and its provisions provide, among other things, for the implementation of numerous sanctions as well as the suspension of preferential treatment for Hong Kong.[18] While the provisions of both the Hong Kong Autonomy Act and EO are clear about their message to China and Hong Kong, China’s response brings into question their effectiveness. For instance, the day after announcing the EO, China responded by saying that the U.S. actions are in violation of China’s internal affairs and that retaliation is possible.[19]

The Trump Administration’s policy will serve as either guidance for the incoming Biden Administration to build upon or will serve as a failed attempt at restoring human rights. The Biden Administration’s incoming Secretary of State, Tony Blinken, has already communicated that there will be a hard stance on this issue.[20] While much is unknown at this time, advisors to President Biden have stated that his administration plans to take the opposite approach of the Trump Administration.[21] Rather than relying on sanctions, the Biden Administration plans to enlist allies and take a multilateral approach to the issue.[22] As our country begins to shape its policies under new leadership this January and in the coming years, it is critical that we take a new look at the status of Hong Kong and evaluate both our role and responsibilities in restoring democracy back to Hong Kong.

Deane Ciampa is a staff member of Fordham International Law Journal Volume XLIV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] George Orwell, 1984 263 (1950).

[2] See Susan V. Lawrence & Michael F. Martin, Cong. Rsch. Serv., R46473, China’s National Security Law for Hong Kong: Issues for Congress (2020).

[3] See China: New Hong Kong Law a Roadmap for Repression, human rights watch (July 29, 2020, 6:00 AM), https://www.hrw.org/news/2020/07/29/china-new-hong-kong-law-roadmap-repression.

[4] See Orwell, supra note 1.

[5] Zhao Lijian, Foreign Ministry Spokesperson, Press Conference (July 1, 2020) (transcript available at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1793861.shtml).  

[6] See Human Rights Watch, supra note 3.

[7] Law on Safeguarding National Security in the Hong Kong Special Administrative Region (promulgated by Standing Comm. of the Nat’l People’s Cong., June 30, 2020, effective June 30, 2020), art. 20-23 P.R.C. Laws (China).

[8] See Lawrence & Martin, supra note 2.

[9] See Global News, Hong Kong Security Law: What is it and why is it so controversial? YouTube (July 23, 2020), https://www.youtube.com/watch?v=vKuMtI7n-EU.

[10] See id.

[11] See Hong Kong: First arrests under 'anti-protest' law as handover marked, BBC News (July 1, 2020), https://www.bbc.com/news/world-asia-china-53244862.

[12]See John Cheng & Kari Soo Lindberg, First Man Charged Under Hong Kong Security Law Pleads Not Guilty, Politics, Bloomberg (Nov. 16, 2020, 3:25 AM), https://www.bloomberg.com/news/articles/2020-11-16/first-man-charged-under-hong-kong-security-law-pleads-not-guilty.

[13] See Vivian Wang, Austin Ramzy & Tiffany May, Hong Kong Police Arrest Dozens of Pro-Democracy Leaders, N.Y. Times, https://www.nytimes.com/2021/01/05/world/asia/hong-kong-arrests-national-security-law.html (last updated Jan. 8, 2021).

[14] See Weizhen Tan, World leaders react to China’s controversial national security bill in Hong Kong, World Politics, CNBC, https://www.cnbc.com/2020/05/29/world-leaders-react-to-chinas-controversial-national-security-bill-in-hong-kong.html (last updated May 29, 2020, 1:47 AM).

[15] See generally Lawrence & Martin, supra note 2.

[16] See id at 34.

[17] See id.

[18] See id.

[19] See Steven Lee Myers, China Vows to Retaliate After Trump Signs Hong Kong Sanctions Bill, N.Y. Times, https://www.nytimes.com/2020/07/15/world/asia/china-trump-hong-kong.html (last updated Aug. 12, 2020).

[20] See Antony Blinken (@ABlinken), Twitter (Jan. 5, 2021, 10:42 PM), https://twitter.com/ABlinken/status/1346663418946859010.

[21] See William Mauldin, Biden’s Vow to Be Tough on Beijing Will Get Early Test With Hong Kong Arrests, World, Wall St. J., https:s//www.wsj.com/articles/bidens-vow-to-be-tough-on-beijing-will-get-early-test-with-hong-kong-arrests-11610028001 (last updated Jan. 7, 2021, 4:08 PM).

[22] See id.