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Society & Culture

US Bill on Hong Kong is Both Illegal and Unwise

Oct 18, 2019
  • Tian Feilong

    Associate Professor, the Law School of Beihang University

On Oct. 15, the U.S. House of Representatives passed the Hong Kong Human Rights and Democracy Act of 2019 — a blatant and direct interference in Hong Kong affairs. If it becomes law, the Trump administration will have wide discretionary power in enforcing the act, leaving much room for political games and interest bargaining with China.

The act was a product of the China hawks in the U.S. and something desperately sought by the Hong Kong opposition. Meanwhile, legislators in the United States were also attempting to adopt the Taipei Act, which was intended to retain Taiwan’s diplomatic allies and help Taiwan maintain minimal international standing and influence. When the U.S. deploys its legislative and global strategic resources to rub shoulders with Hong Kong’s opposition and Taiwan separatists, it shows its typical desire to exert “long-arm jurisdiction” over others’ internal affairs. Such interference constitutes a direct infringement of China’s sovereignty and interests, as well as principles of international law.

The content of the Hong Kong act should have fallen into the category of diplomacy, but it was made into a bill by the U.S. Congress, as is its habitual practice. The act is a sort of amendment or upgrade of the U.S.-Hong Kong Policy Act of 1992, which was enacted at a special point during China’s reform process against the following background:

First, the U.S., in reaction to changes in Hong Kong’s status and in Hong Kong-U.S. relations after the Sino-British Joint Declaration and the region’s return to the motherland, had the legislative need to set forth and adjust its economic and trade relations with Hong Kong. It enacted a similar policy for Macao.

Second, because of the intensified lobbying by democracy advocates in Hong Kong and hawkish forces in the U.S. calling for sanctions on China following the 1989 incident, the Hong Kong Policy Act no longer focused solely on economic and trade issues. It had expanded to include the so-called issues of Hong Kong’s human rights and democracy. The 2019 act is actually an expansion and detailed upgrade of the 1992 policy as to clauses relating to human rights and democracy in Hong Kong. It is an attempt to respond to changes in Hong Kong’s governance structure and external relations that have taken place in the 22 years since its return.

The Hong Kong Policy Act and the latest update both try to conflate Hong Kong’s independent economic and trade status with political independence, and attempt to interfere in issues of human rights and democracy. This seriously violates the “one country, two systems” principle and the Basic Law of the Hong Kong Special Administrative Region.

The latest act contains the following elements: a discussion of Hong Kong’s constitutional basis and its protection of human rights and democracy; an annual assessment of Hong Kong’s autonomy and economic and trade status; provisions for favorable treatment and protection of protesters in Hong Kong; the imposition of sanctions on law enforcement officers who infringe upon the rights or freedoms of the Hong Kong people; an assessment of whether Hong Kong has adequately enforced the U.S. export control laws and sanctions; and the protection of U.S. citizens and American interests in Hong Kong.

According to international jurisprudence, such protections should have been enforced under the Chinese Constitution and the Basic Law. The U.S., however, simply ignored the Chinese laws and directly applied its own domestic laws to such protections and took corresponding measures and sanctions, which constitute legal prejudice and a challenge both to China’s judicial sovereignty and to Hong Kong’s high degree of autonomy. The U.S., while demanding that China’s central government respect Hong Kong’s high degree of autonomy, directly infringed upon the high degree of autonomy of Hong Kong by resorting to its domestic laws. Its de jure logic was seriously confusing and ill-founded.

The act is erroneous in terms of both jurisprudence and facts, providing proof that the U.S. Congress introduced the politics-driven bill hastily and failed to exercise due diligence or verify the relevant legal background and facts. Therefore, even when the act is eventually adopted by the full House, the Trump administration will find it difficult to implement this politically charged law, or at least some of its clauses.

In the past, the U.S. had similar politically motivated and interference-focused legislation, statutes that were considered “dummy laws,” a term used to describe laws that have taken effect but cannot be enforced. However, because of the fact that the U.S. containment strategy against China is comprehensive and profoundly far-reaching, some clauses of the act might be selectively enforced, and could even be overused or abused.

Errors in the act include a time frame for universal suffrage in Hong Kong that is totally inapplicable. The act stipulates that Hong Kong voters should freely enjoy the right to elect the chief executive and all members of the Legislative Council through universal suffrage by 2020. This is irresponsible and indiscreet because it is not in compliance with the Basic Law and relevant laws.

It also provides unconditional support for Hong Kong protesters while setting strict and unfair requirements on law enforcement — a sort of disguised endorsement of violence.

In addition, its threat to impose sanctions related to law enforcement would seriously encroach on the rule of law and democratic process, blatantly damage the high degree of autonomy in Hong Kong, and seriously undermine the Basic Law. It aims to provide unprecedented political support for local opposition forces, and even Hong Kong independence forces, and the irresponsible behavior that foments “color revolution”.

The act’s threat about Hong Kong’s economic and trade status is a kind of misjudgment and neglect of American interests in the city, and it fails to adequately assess the enormous value of Hong Kong as a platform for American commercial interests and the win-win nature of that platform under the “one country, two systems” framework.

The act obviously overestimated the role of Hong Kong in the Greater Bay Area as a national technology and innovation center, and exposed the U.S. as still harboring a Cold War mentality toward China in the field of technology.

Finally, the act fails to clearly understand (and intentionally misunderstands) Hong Kong’s constitutional basis, and deliberately lists the Sino-British Joint Declaration and the Basic Law on equal footings to elevate its constitutional status. This is an intentional distortion of Hong Kong’s constitutional basis, which was created under the Chinese Constitution and Hong Kong’s Basic Law, and it will likely further encourage protesters in Hong Kong to continue their radical violence and separatist activities.

This latest act by the U.S. House is another example of “long arm” and interventionist legislation. It poses a direct challenge to the “one country, two systems” principle and the Basic Law by implicitly condoning violent protesters. It is a direct obstruction and offset to current efforts to curb violence and restore law and order in Hong Kong.

The act will also be an obstacle in the new round of China-U.S. trade talks and will increase the risk in China-U.S. relations. It is an example of the lack of confidence and responsibility the U.S. has shown in its foreign policy and behavior in international politics.

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