“We have been very clear about this,” declared Ursula von der Leyen, the President of the European Commission, a day after the law was enacted. “For us, this is a very critical issue, and we are quite concerned by it.”
When “security” wipes out freedom
With six chapters and sixty-six articles, Beijing has enacted its new law with immediate effect. It defines four new crimes: separatism, subversion, terrorism, and collusion with external powers. Significantly, this means that anyone who protests against China will be accused of collaborating with foreign governments. The penalties for these crimes can even include life imprisonment (a penalty which can however be commuted if the accused also denounces others – Article 33-3). But the consequences of the law extend well beyond the city of Hong Kong and its inhabitants. According to Article 38, it also applies to crimes committed outside of Hong Kong, and any foreigner can be accused of threatening national security, whether they are a permanent resident or not. The law will also tighten its control over NGOs and foreign press agencies.
Besides the increased suppression of civil liberties that it entails, the law threatens the independence of Hong Kong’s justice system, first and foremost by allowing a greater degree of control over trials. From here on out, judges who preside over national security cases will be appointed by Hong Kong’s executive. Cases that involve national security or public order can also now take place behind closed doors, even without a jury. By taking on the mantle of judge, China has effectively become the master of the Hong Kong peoples’ future. This future is all the more restricted now that certain trials could take place right on Chinese soil “when a major and imminent threat to national security has occurred, when foreign powers are involved or when the Hong Kong government is unable to effectively enforce the law” (Article 55).
The justice system is thus robbed of its legal procedures, putting in question its neutrality. This balance, that defines it, is disappearing along with the rights of the accused. Normally, the latter would allow a fair trial – after questioning – but now, no appeals will be permitted in light of the decision of the Commission for Safeguarding National Security of the Hong Kong Special Administrative Region, headed by officials from China’s central government.
From control of the opposition to control of the region More than anything else, the law demonstrates Beijing’s desire to tighten its grip on the population of Hong Kong and suppress any opposition that might emerge. In fact, the Chinese government clearly affirmed its intention to control through repression when it declared that “for the small minority of people who endanger national security, this law will be a sword hanging over their heads”. The government soon made good on this threat: the very next day, the arrests began.
Consequently, on Tuesday, July 1st, a massive protest took place against this violation of liberties. Although a majority of the arrests were linked to an earlier ban on large assemblies, seven protestors have paid the price for this new law. The first of them was arrested for having placed a flag on the sidewalk with the words “Hong Kong Independence” emblazoned upon it. In this way, “thanks to the crime of subversion, the mere fact of protesting against Beijing, or speaking in favor of the independence of Hong Kong, Taiwan, or Tibet, could be punishable by a prison sentence”, explains Jean-Louis Rocca, a researcher at the French Centre de Recherches Internationales (Ceri).
Through its vague definition of terms like “terrorism” or “subversion”, the law permits members of China’s government to personally interpret what should or should not be punished. “It’s Beijing who has the power to decide what you have done wrong and why it’s wrong,” a legal expert from Hong Kong stated recently in Le Monde newspaper. This lawyer preferred not to reveal his identity since, according to him, “even to speak and share one’s opinion about this has become dangerous”. Beijing’s brand of intimidating any resistance has already had some success, most notably by dissolving the political organisation Demosistō, which fought for the “democratic self-determination” of Hong Kong’s people after being founded in 2014.
But Xi Jinping’s aims aren’t just about silencing dissidents in Hong Kong. The new law is also part of a larger project which seeks to “continentalize” the Special Autonomous Region. For Jean-Phillipe Béja, director of research at Ceri, “the purpose of this law is to abolish the ‘one country, two systems’ model to strengthen the power of the government domestically.” Indeed, the law goes against the 1984 Sino-British Joint Declaration, which guaranteed Hong Kong autonomy as well as certain rights and freedoms for its inhabitants. Consequently, “by superseding Hong Kong’s legal system in this way, Beijing strikes right at the heart of this feature” of the Declaration, explains journalist Florence de Changy. For many people, then, July 1st also signified the end of a state of exception inherited from the British, which provided Hong Kong with an internationally respected state founded on the rule of law.
Wavering between a desire for retaliation and a desire to preserve its economic partnership with China, the EU remains pragmatic
Though certain international actors have decided to respond immediately with economic sanctions, the EU is erring on the side of caution for the time being. Indeed, although U.S. President Donald Trump was already on a trajectory of opposition with China, the law has only further justified his desire to hinder the privileged relationship between the United States and Hong Kong. Describing the law as “draconian” on Twitter, U.S. Secretary of State Mike Pompeo announced that licenses would henceforth be required for all exports intended for civil or military use, and that exports of defense equipment to Hong Kong would cease entirely. On the other side of the Atlantic, his British counterpart, Dominic Raab, echoed his words, denouncing the law as constituting “a clear violation of Hong Kong’s autonomy and a direct threat to the freedoms of its people”. Like Washington, London has decided to act, by granting the right to live, work, and apply for citizenship in the UK to the roughly 3 million Hongkongers who possess British National Overseas status. On July 4th, Canada also responded by suspending its extradition treaty with Hong Kong and also its exports of “sensitive” military equipment.
While in these three Anglophone countries sanctions were immediate, the EU’s High Representative for Foreign Affairs and Security Policy, Josep Borrell, announced on July 7th that Europe needed to have its own view of the situation. For him, sanctions “are not the solution” to this recent escalation by China. However, the warnings given all throughout May don’t seem to have been effective, either. Indeed, on May 22nd, the High Representative expressed his concern about the decision made the night before by the National People’s Congress to establish a new “legal framework in order to protect national security in Hong Kong”. This same concern was expressed once again on May 29th, when Borrell accused China of casting doubt on its “international commitments”. Despite these warnings, the EU has sat by and watched China pursue its trajectory.
Though Commission President von der Leyen has stated that “the rights and liberties of the residents of Hong Kong must be fully protected”, she nevertheless spoke of Europe’s vigilance on this situation: “we remain in touch with our international partners on this matter and will pay carefully [sic] attention on how to respond." This consultation is set to take place on July 13th during a meeting between several European foreign affairs ministers. Many predict, however, a weak commitment. All that can be expected, according to the journalist Jean-Pierre Stroobants, is a simple “restatement of fundamental principles, perhaps, and a mention that the law risks, by virtue of its consequences, causing Hong Kong to lose its status as the seventh largest centre of international finance”.
The last of these issues helps to explain Germany’s passive position; Chancellor Angela Merkel emphasized on July 2nd that dialogue with China should be maintained “at all levels”. The economic stakes of the law therefore enter into this debate, since, according to Stroobants, “Chancellor Merkel views the Germany-China relationship primarily through an economic lens, and does not want her country to pay the price of the EU27 taking an excessively strong position on human rights.” For the EU, then, the challenge is to strike an equilibrium between economic partnership and political opposition.
An uncertain topic
Faced with this international pressure, Carrie Lam recently accused foreign governments of applying policies with “double standards” since “all those countries which have pointed their fingers at China have their own national security legislation”. And though China received the support of Cuba, as well as 52 other countries, during a session of the United Nations Human Rights Council, the majority of Western countries are anxious about the events to come. Indeed, the law may cause a domino effect, and even go so far as to extend to Taiwan. Already, each and every slogan in favor of the independence of Taiwan is considered an act of subversion and punishable with prison sentences. The law is also an ill omen for the upcoming elections, as noted by the Deputy Regional Director at Amnesty International, Joshua Rosenzweig: “China’s eagerness to pass this law quickly is also an ominous sign for the legislative elections coming up in Hong Kong in September, with a threat that the security law could be used against pro-democracy candidates.”
Faced with this challenge to democracy, “Europe cannot and should not keep silent”, affirmed Jean-Maurice Ripert, France’s ambassador to China. Even though it is divided on this question for the moment, the EU does not intend to remain passive. European elected officials have already begun to consider the creation of a “lifeboat” system for the citizens of Hong Kong. And even if Beijing continues to resist foreign opposition, some, like Jean-Philippe Beja, remain optimistic: “together, Europe’s reactions to China will help weaken Xi Jinping and may strengthen those who oppose him”.
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