In June 2019, protests erupted in Hong Kong after its government proposed an extradition agreement with mainland China. Alarmed by the protests, the Central Committee of the Chinese Communist Party announced that it would consider new national security measures for Hong Kong. On June 30, 2020, China's National People's Congress Standing Committee (NPCSC) passed the “Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.” While the law was under consideration, the United States responded by declaring that Hong Kong was no longer significantly autonomous from mainland China and beginning the process of ending Hong Kong's special status under U.S. law. The United States and its allies continue to criticize Hong Kong's deteriorating autonomy from China, pointing to the postponement of elections in Hong Kong as further evidence.
The Sino-British Joint Declaration on the Question of Hong Kong governs China's relationship with Hong Kong.Footnote 1 Pursuant to the “one country, two systems” principle enshrined in the declaration, Hong Kong's Special Administrative Region is allowed to maintain a capitalist system free of mainland China's socialist policies until 2047—fifty years after the British government returned Hong Kong to Chinese control.Footnote 2 Because of its autonomy from China, Hong Kong has long enjoyed a special status under U.S. law, retaining many of the same independent agreements and protections that it had before its reincorporation into China.Footnote 3
In June 2019, protests began in Hong Kong after its government sought to enact a law allowing extradition of defendants to mainland China for prosecution of certain crimes.Footnote 4 Although the Hong Kong government withdrew the bill, protests continued with new demands for political reform.Footnote 5 The Central Committee of the Chinese Communist Party responded by announcing in October 2019 that it would consider new national security measures in Hong Kong.Footnote 6 Just one month later, the U.S. Congress passed the Hong Kong Human Rights and Democracy Act of 2019, expressing support for Hong Kong's autonomy and requiring annual certification from the executive branch of whether Hong Kong remains sufficiently autonomous to justify continued special status under U.S. law.Footnote 7 Nonetheless, the Chinese government proceeded with its plans, and in May 2020, it announced that the National People's Congress would review the proposal to establish new national security laws in Hong Kong.Footnote 8
The May announcement prompted swift reactions from the United States. On May 27, U.S. Secretary of State Michael Pompeo reported to Congress that Hong Kong no longer had significant autonomy from mainland China, stating:
No reasonable person can assert today that Hong Kong maintains a high degree of autonomy from China, given facts on the ground . . . . While the United States once hoped that free and prosperous Hong Kong would provide a model for authoritarian China, it is now clear that China is modeling Hong Kong after itself.Footnote 9
On May 29, President Donald Trump announced that he would take steps to end the U.S. special relationship with Hong Kong. Trump noted, “[t]his week, China unilaterally imposed control over Hong Kong security” in “plain violation of Beijing's treaty obligations with the United Kingdom in the Declaration of 1984 and explicit provisions of Hong Kong's Basic Law.”Footnote 10 Because “China has replaced its promised formula of ‘one country, two systems’ with ‘one country, one system,’” Trump explained, the United States would “begin the process of eliminating policy exemptions that give Hong Kong different and special treatment.”Footnote 11 The State Department ended exports of U.S.-origin military equipment to Hong Kong,Footnote 12 and the Commerce Department announced export controls on sensitive U.S. technology, suspending existing export license exceptions.Footnote 13 Congress also reacted with a bipartisan call for new sanctions on China.Footnote 14
On June 30, China's NPCSC passed the “Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” and added it to Hong Kong's Basic Law.Footnote 15 The stated purpose of the new national security law is to “prevent, curb and punish acts of secession, subversion of state power, terrorist activities, and collusion with foreign or external forces to endanger national security.”Footnote 16 Key provisions of the law include the establishment of a new security office controlled by mainland China, the establishment of a Hong Kong national security commission that includes an adviser appointed by mainland China, authority for Hong Kong's chief executive to appoint judges for national security cases, and deference to the new national security law if there is a conflict with Hong Kong law.Footnote 17
In a speech to the UN Human Rights Council, Chief Executive of Hong Kong Carrie Lam defended the new law as an answer to the “gaping hole” in Hong Kong national security.Footnote 18 She invoked the unsuccessful 2003 attempt by the Hong Kong government to pass national security laws as evidence of Hong Kong's inability to independently fulfill the Basic Law's requirement that Hong Kong enact laws to safeguard national security.Footnote 19 Furthermore, she asserted that the law would not alter Hong Kong's autonomy, stating:
The law will not affect Hong Kong's renowned judicial independence. It will not affect legitimate rights and freedoms of individuals which are protected under the Basic Law and the relevant provisions of international covenants as applied to Hong Kong. They include, among others, the freedom of speech, of the press, of assembly, of demonstration, and of procession.Footnote 20
She criticized foreign objections to the law by pointing to the “double standard” of other countries passing their own national security laws but criticizing China for enacting laws “to protect every corner of its territory and all of its nationals.”Footnote 21
On July 14, President Trump signed into law the Hong Kong Autonomy Act,Footnote 22 which authorizes sanctions on officials or institutions that undermine Hong Kong's semiautonomous status.Footnote 23 Pursuant to the Hong Kong Autonomy Act and other preexisting statutes, Trump issued an executive order determining that Hong Kong was “no longer sufficiently autonomous to justify differential treatment” and directing executive departments to take actions necessary to alter various legal regimes.Footnote 24 Among other steps, the executive order directs federal agencies to revoke license exceptions and remove special regulatory treatment of Hong Kong for purposes of export control regulations and to give notice of U.S. intent to terminate several agreements with Hong Kong.Footnote 25 The executive order also authorizes sanctions against foreign persons who are involved in implementing the national security law or who, among other things, are “responsible for . . . actions or policies that threaten the . . . autonomy of Hong Kong” or “censorship or other activities . . . that prohibit, limit, or penalize the exercise of freedom of expression or assembly by citizens of Hong Kong.”Footnote 26
Pursuant to the executive order, the Treasury Department sanctioned Lam and other Hong Kong and Chinese officials for “undermining Hong Kong's autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.”Footnote 27 The State Department notified the Hong Kong government on August 19 that it would suspend or terminate bilateral agreements on “the surrender of fugitive offenders, the transfer of sentenced persons, and reciprocal tax exemptions on income derived from the international operation of ships.”Footnote 28 On September 14, the State Department also issued a travel advisory to “reconsider travel” to Hong Kong.Footnote 29 The advisory states:
Since the imposition of national security legislation on July 1, the [People's Republic of China (PRC)] unilaterally and arbitrarily exercises police and security power in Hong Kong. The PRC has demonstrated an intention to use this authority to target a broad range of activities it defines as acts of secession, subversion, terrorism, and “collusion” with foreign countries. The new legislation also covers offenses committed by non-Hong Kong residents or organizations outside of Hong Kong, which could subject U.S. citizens who have been publicly critical of the PRC to a heightened risk of arrest, detention, expulsion, or prosecution.Footnote 30
Other countries have also expressed strong opposition to the national security law through both unilateral and multilateral actions. Several countries, such as the United Kingdom and Canada, suspended their own extradition agreements with Hong Kong.Footnote 31 The G7 Foreign Ministers released a statement in June, prior to the passage of the law, that sought to dissuade China from proceeding.Footnote 32 The statement argued that:
China's decision is not in conformity with the Hong Kong Basic Law and its international commitments under the principles of the legally binding, UN-registered Sino-British Joint Declaration. The proposed national security law would risk seriously undermining the “One Country, Two Systems” principle and the territory's high degree of autonomy.Footnote 33
In an October meeting of the UN General Assembly Third Committee, German Ambassador Christoph Heusgen presented a joint statement of thirty-nine countries, including the United States, expressing concern that the national security law violates China's international law obligations, especially rights guaranteed by the International Covenant on Civil and Political Rights and the Sino-British Joint Declaration.Footnote 34
In contrast, other countries voiced their support for China.Footnote 35 In a joint statement announced by Pakistan's permanent representative to the United Nations, over fifty countries supported the national security law as a legitimate exercise of sovereignty by the Chinese government, stating that “[n]on-interference in the internal affairs of sovereign states is an important principle enshrined in the Charter of the United Nations and a basic norm of international relations” and asserting that “Hong Kong affairs are China's internal affairs that brook no interference by foreign forces.”Footnote 36
Actions by the Hong Kong government since the passage of the national security law have caused further alarm. On July 31, the Hong Kong government announced that it would postpone the September 2020 legislative election by one year, citing the coronavirus pandemic as the main reason for the delay.Footnote 37 The postponement announcement came one day after the government barred twelve pro-democratic candidates from running in the election.Footnote 38 The Hong Kong government justified the candidates’ disqualification on the grounds that they “could not genuinely uphold the [Basic Law] and could not therefore perform the duties of a” legislature member due to their participation in certain “behaviours.”Footnote 39 Behaviors declared to be against the Basic Law included, among others:
advocating or promoting Hong Kong independence, self-determination or changing the system of the [Hong Kong Special Administrative Region (HKSAR)] by supporting Hong Kong independence as an option for self-determination; soliciting intervention by foreign governments or political authorities in relation to the HKSAR's affairs; [or] expressing an objection in principle to the enactment of the National Security Law by the Standing Committee of the National People's Congress and its subsequent promulgation.Footnote 40
Opposition candidates accused the government of election fraud, arguing the postponement sought to counteract the momentum these candidates enjoyed due to public outrage over the national security law.Footnote 41 The foreign ministers of Australia, Canada, New Zealand, the United Kingdom, and the United States released a joint statement decrying the disqualification of candidates and the postponement of elections.Footnote 42 The statement declared:
We support the legitimate expectations of the people of Hong Kong to elect Legislative Council representatives via genuinely free, fair, and credible elections. We call on the Hong Kong government to reinstate the eligibility of disqualified candidates so that the elections can take place in an environment conducive to the exercise of democratic rights and freedoms as enshrined in the Basic Law. Beijing promised autonomy and freedoms under the “One Country, Two Systems” principle to the Hong Kong people in the Sino-British Joint Declaration, a U.N.-registered treaty, and must honor its commitments. We urge the Hong Kong government to hold the elections as soon as possible.Footnote 43
Countries have also opened their borders to asylum seekers from Hong Kong, prompting protests from the Hong Kong and Chinese governments.Footnote 44 British Prime Minister Boris Johnson announced in June 2020 that the United Kingdom would allow Hong Kong residents with British overseas passports to receive visas and seek British citizenship.Footnote 45 In September, the U.S. Department of State submitted the President's Report to Congress on the Proposed Refugee Admissions for Fiscal Year 2021.Footnote 46 The report includes Hong Kong refugees as a group that will receive priority, marking the first time Hong Kong has been included in the annual refugee admissions proposal.Footnote 47 On October 27, 2020, President Trump approved these refugee admissions determinations.Footnote 48 Congress is also considering three bills that would increase protections for Hong Kong refugees in the United States.Footnote 49
The situation in Hong Kong continues to evolve. On November 11, 2020, the NPCSC approved a measure allowing lawmakers deemed disloyal to Beijing to be removed from office.Footnote 50 As a result, four pro-democracy legislators were ousted from the Hong Kong Legislative Council, and the remaining fifteen pro-democracy legislators announced they would resign in solidarity.Footnote 51 Secretary of State Pompeo condemned the disqualification of the four pro-democracy legislators, stating:
Beijing has eliminated nearly all of Hong Kong's promised autonomy, as it neuters democratic processes and legal traditions that have been the bedrock of Hong Kong's stability and prosperity. . . . We will hold accountable the people responsible for these actions and policies that erode Hong Kong's autonomy and freedoms. We stand with the disqualified pan-Democratic lawmakers, the pro-democracy lawmakers who resigned in protest, and the people of Hong Kong.Footnote 52
The United States also released a joint statement with foreign ministers of Australia, Canada, New Zealand, and the United Kingdom calling the disqualifications a breach of the Sino-British Joint Declaration and asking China to reinstate the legislators.Footnote 53 On December 7, the United States announced additional sanctions directed against fourteen vice chairpersons of the NPCSC for their role in adopting the national security law.Footnote 54 In response, China announced that “it would revoke visa exemption treatment for U.S. diplomatic passport holders visiting Hong Kong and Macau” and impose “reciprocal sanctions” on unspecified “U.S. officials, members of Congress, personnel at non-governmental organisations, and their family members.”Footnote 55
