Sanctions between the US and China in Hong Kong clash – Community News
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Sanctions between the US and China in Hong Kong clash

Introduction

Since the adoption of the Hong Kong National Security Law (NSL) on July 1, 2020, the US has sanctioned 42 individuals for their role in enforcing the law. The People’s Republic of China (PRC) has responded with counter-sanctions against the US and a mainland anti-sanction law with similar legislation under discussion in Hong Kong. These tit-for-tat sanctions between the US and China are indicative of how Hong Kong, once a source of US-China connectivity, has become a growing source of contention in an increasingly fraught relationship.

Legislation and impact

The Standing Committee of the National People’s Congress of the PRC has directly adopted an NSL for Hong Kong based on its powers under Article 18 of the Basic Law. de facto mini-constitution implementing the Sino-British Joint Declaration, bypassing any input or consultation with the Hong Kong government. (General Office of the Standing Committee of the National People’s Congress, June 30, 2020), bypassing any input or consultation with the Hong Kong government. While many local people (including Hong Kong politicians) opposed the NSL, they lacked the political space or tools to do so effectively.

The NSL finds that the crimes of secession, subversion, terrorist activity and collusion with a foreign country or with outside elements endanger national security. These violations can occur if a person simply “organizes, plans, commits, or participates in any of the following acts” [related to secession and subversion] by force or threat of force or other illegal means with a view to undermining state power” and “terrorism” is not strategically defined. In addition, Article 38 has raised concerns about extraterritorial jurisdiction over all non-Chinese citizens, such as “[t]its law applies to offenses under this law committed from outside the region against the Hong Kong Special Administrative Region by a person who is not a permanent resident of the region” (Hong Kong Government, June 30, 2020). If interpreted broadly, this article could criminalize any criticism of the Chinese government by anyone, anywhere in the world. Despite concerns about the ambiguity of the NSL, there is no official clarification or guidance on the PRC’s legislation. This led many observers to conclude that the NSL is intended to shrink the civil and political space, including criticism and dissent, at home and abroad.

In the first year since the first passage of the NSL, Beijing has successfully established new offices and committees to ensure smooth monitoring and implementation of the law. These arrangements combine politicians and officials from the mainland and Hong Kong together, increasing Beijing’s direct role in local government and further eroding Hong Kong’s autonomy under “One Country, Two Systems”. The High Court’s first NSL verdict found Tong Ying-kit (唐英杰) guilty of incitement to secession and terrorist activity. Tong was jailed for nine years for running a motorcycle carrying a flag reading “Free Hong Kong, Revolution of Our Times” on three police officers during a 2020 demonstration (Hong Kong Free Press, July 30). Tong’s imprisonment shows that the Hong Kong judiciary is also determined to strictly enforce Beijing’s NSL. Other NSL cases, such as Jimmy Lai’s pending national security trial, where the maximum penalty is life imprisonment (Hong Kong Free Press, June 15), reveal that many of the worst fears surrounding the NSL are becoming reality. For example, after Lai was arrested, the International Press Institute condemned the move, saying it “confirms what we already knew: the PRC’s so-called ‘national security’ law was imposed as a tool to enforce fundamental freedoms in Hong Kong. the most important among them freedom of the press” (IPI, June 17).

Sanctioned persons

From August 7, 2020 to July 16, 2021, the US Treasury Department sanctioned 42 individuals for their role in enforcing the NSL by invoking the Hong Kong Autonomy Act of 2020, the Hong Kong Human Rights and Democracy Act of 2019, the Global Magnitsky Act and Series of Executive Orders on Hong Kong

(US Department of the Treasury, August 7, 2020; US Consulate General Hong Kong & Macau, November 9, 2020; US Department of the Treasury, December 7, 2020; US Consulate General Hong Kong & Macau, January 15; US Department of the Treasury, the treasury, July 16). Among them, all 14 vice presidents of the PRC’s National People’s Congress (NPC) were sanctioned, while the rest were Hong Kong-based politicians and officials. The People’s Republic of China responded that this was an “outrageous, unscrupulous, mad and despicable act” that “will cause greater outrage” (Embassy of the People’s Republic of China to the Kingdom of the Netherlands, December 8, 2020).

The US has now sanctioned nearly all officials directly related to the NSL, but has refrained from cracking down on top officials overseeing PRC’s policies towards Hong Kong. For example, while others in the NPC leadership were subject to sanctions, the chairman of the NPC’s Standing Committee and member of the Politburo Standing Committee, Li Zhanshu, was not sanctioned (Bloomberg, Dec. 10). Deputy Prime Minister and member of the Politburo Standing Committee, Han Zheng, who heads the Central Leading Group for Hong Kong and Macau Affairs (中央港澳工作协调小组, zhongyang gangao gongzuo xietiao xiaozu) has also evaded US sanctions, as has Secretary General Xi Jinping. The US also issued a corporate advisory at the time, highlighting that the legal landscape, particularly that the NSL, “could adversely affect companies and individuals operating in Hong Kong. As a result of these changes, they must be aware of potential reputational, regulatory, financial and, in some cases, legal risks associated with their Hong Kong operations.” (US Department of the Treasury, July 16).

Counter-Sanctions and Anti-Sanction Laws

In response to US sanctions, the PRC has imposed sanctions on 46 US citizens (FMPRC, August 10, 2020; FMPRC, January 21; FMPRC, July 23). The People’s Republic of China argues that this is a way of treating the US in a manner equivalent to, and thus reciprocal, to what it is subjected to. However, the sanctioned people are not directly involved in the US sanctions against the People’s Republic of China, nor are they critics of the NSL. On the contrary, the sanctions appear to be an opportunity for the PRC to retaliate against those it dislikes. The People’s Republic of China accused “anti-Chinese politicians” and “selfish political interests and prejudice and hatred of China” as the reasons for US sanctions (FMPRC, Jan. 20), claiming that the US is “seriously violating basic standards of international relations” and is meddles in the internal affairs of the PRC (Embassy of the People’s Republic of China in Finland, August 8, 2020). However, the PRC has never responded directly to criticism of the NSL or its human rights violations in Hong Kong.

In addition, the NPC’s Standing Committee passed a Foreign Sanctions Act on June 10 (the National Congress of the People’s Republic of China, June 10) that was drafted domestically as a necessary countermeasure against unfair sanctions against the People’s Republic of China (Xinhua, 11 June). The law provides for three categories of countermeasures, which are related to visas, entry into the PRC and deportation; sealing, seizing and freezing property and assets; and prohibiting sanctioned individuals from transacting with domestic organizations or individuals (The National Congress of the People’s Republic of China, June 10). The passage of the Anti-Sanction Act also furthers the PRC’s narrative that Western countries are unfairly and unjustifiably defamed their policies, which explains this response. However, the impact is small due to the number and type of people affected.

Beijing has also drafted an anti-sanction law for Hong Kong, but the vote on the legislation has been postponed (South China Morning Post, Aug. 20). Since Hong Kong is already the subject of a US business advisory, the anti-sanction law could put further pressure on business by preventing Hong Kong companies from doing business with US companies and financial institutions.

conclusions

The NSL violates the PRC’s obligations under the Sino-British Joint Declaration, the Basic Law and international human rights law, in particular the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (UN Office of the High Commissioner for Human Rights, 1 September 2020). Nevertheless, the international community has few tools to force the PRC to refrain from rolling back civil and political rights in Hong Kong, and while sanctions may sting individuals, they cannot fundamentally change the situation in Hong Kong.

However, the PRC’s response threatens to further weaken US-China economic ties in an already increasingly tense relationship. The goals are seemingly arbitrary and the People’s Republic of China has not provided convincing justification for its choices. In a landscape of many other politically motivated restrictions and regulations already affecting US businesses, the counter-sanctions and anti-sanctions law could further restrict transactions between US companies and their Chinese and Hong Kong counterparts.

Anouk Wear is a researcher and translator focused on human rights in the China region. She received her BA in Social Anthropology from the University of Cambridge and her Advanced LLM in Public International Law with a specialization in Peace, Law and Development from Leiden University.

Remarks:

[1] Constitution of the People’s Republic of China, Article 66.

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Rakesh

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