China’s national security law for Hong Kong, explained

Can you explain what the national security law is and also why China is acting on it now?

This week at the National People’s Congress [legislature’s] big annual meeting, they announced they would adopt a national state security law that would apply in Hong Kong. It is pretty clear it will set forth rules that provide punishment for subversion, secession, sedition, treason, and connection with foreign political forces. It appears it is also likely to expand the scope for Chinese mainland security forces’ authority to operate in Hong Kong. There was a separate statement by a Chinese official, not part of the [National People’s Congress] process, that said it might also entail the central authorities exercising more direct control over the local police.

Essentially, what the law’s core provisions will do is create very general standards for what could subject one to sanctions, including serious criminal sanctions in Hong Kong. The worry is those general and vague terms could be interpreted in Hong Kong the way they are interpreted in the mainland, which is extremely flexibly and broadly. It appears the law would also include terrorism, which is very broadly defined in China and is a term that the Hong Kong government—and the central government in Beijing—have employed to describe some of what has gone on in the Hong Kong protests against the so-called extradition bill during the last year or so. Everybody’s antennae are up because these are political-sounding terms, vaguely defined, and these terms or ones like them have been bandied about to criticize and condemn prior protests in Hong Kong. And, once brought into law applicable in Hong Kong, they could be used to quash civil liberties, advocacy for democracy, and views critical of the regime. That’s the big concern.

There’s a backstory here, which is that the core of what will be covered in this law is addressed in Article 23 of the Basic Law, the mini constitution that was adopted to govern Hong Kong after its return to Chinese rule in 1997. Article 23 of the Basic Law says that Hong Kong shall enact legislation to address subversion, secession, sedition, treason, foreign influence, but the law the NPC is discussing is not a Hong Kong law. This is being done by central government, and that raises constitutional questions in Hong Kong. 

We had a prior round in 2003 when the Hong Kong government tried to adopt local legislation to implement Article 23. There were huge protests against that, partly reflecting some of the same concerns we see now. While the bill was shelved, there has been talk periodically of reviving it, but the sense was it was so unpopular in Hong Kong that attempts to pass such a law would provoke street protests again, and the bill might not be able to get through the local legislature because the opposition in the legislature, primarily from fully democratically elected members, could block it. With the NPC’s move, the matter has been taken out of Hong Kong’s hands and put into the central government’s hands. 

Whether that approach is lawful has been debated. Article 23 of the Basic Law refers to such legislation being adopted by Hong Kong. But the Basic Law structure allows central government laws to be applied in Hong Kong, provided they are so listed under ‘Annex III’ for national laws that apply in Hong Kong. That mechanism has mostly been used for anodyne laws: the national flag or ‘the capital shall be Beijing.’ Of course, such laws apply to all parts of China, including Hong Kong. Using this mechanism for the security law being considered now is controversial also because Annex III laws are supposed to be laws that concern foreign affairs, national defense, and other matters not within Hong Kong’s autonomy.

So, if the law doesn’t fall under any of these guidelines, what is it?

This isn’t in foreign affairs, really, unless you lean very heavily on what we expect to be the law’s restrictions on connections with foreign political organizations—which is also a troublingly elastic provision. It’s not national defense unless you include domestic disorder, which is not how the term is usually understood; you could claim it addresses ‘other matters not in Hong Kong’s autonomy,’ which is fairly vague and, in the hands of the NPC with its power to make laws and to interpret the Basic Law, nearly tautological. As I noted earlier, people opposed to this law are saying this is a violation of Article 23, which says ‘Hong Kong shall adopt’ rather than ‘the central government shall adopt.’ If you bypass Article 23 and try to go the Annex III route, you should have to put it in one of those boxes, and this doesn’t fit comfortably in those boxes. 

One other factor is that we are talking about a description of a draft law. There are concerns that the final version will be expansive, as well as flexibly interpretable. Some accounts indicate that the law will prohibit actions not just against the Central People’s Government—which was the focus of prior proposed law—but against ‘state power,’ which is a much vaguer term. It could give Hong Kong authorities more nearly unchecked power. Some suggest it might apply to the Chinese Communist Party because the Communist Party is written into the Chinese state constitution. It’s another instance of a vague term that people worry could be interpreted very broadly in a way that could restrict the civil liberties of people in Hong Kong.

And why is this legislation happening now?

It reflects the next big step down a road of greater central government intervention and control in Hong Kong. The NPC’s decision comes in the immediate shadow of the protests over the so-called extradition bill. And the protests against that bill, which led to a lot of strong criticisms of the central Chinese government’s intervention in Hong Kong and criticism of the Hong Kong government for being too responsive to Beijing, rather than Hong Kongers. The central government essentially has said, ‘With the 2019 protests, things got out of hand,’ especially as the protests expanded beyond the initial opposition to the extradition bill—which might allow people in Hong Kong to be sent to the mainland for trial for possibly political offenses—to include renewed calls for full democracy.

You mentioned in our conversation last year that China was overreacting to unrest in Hong Kong. Still true?

Yes. I think if the claim is that Hong Kong has become fundamentally ungovernable, that there are terrorists all over the place, that the protests and opposition to what the central government wants to do is manipulated by foreigners, that there’s a real independence movement that matters, then that’s all basically nonsense except perhaps to the extent Hong Kong might become ungovernable, but who is at fault for that? There is a fair share of blame to go around and a lot of it belongs to the government in Hong Kong and Beijing. 

Underlying the events of 2019 and the controversy over the newly proposed law is something we have seen going on for 30 years now. It’s a basic clash of conceptions of government. For Hong Kong democrats and the protesters who take the streets, the view is, ‘Government is supposed to be protective of human rights and a fairly liberal set of civil liberties, and should be pressing toward democracy.’ The argument is those are universal values and values most people in Hong Kong believe in and want, and were promised in Basic Law, which essentially does accept international human rights as applying in Hong Kong, plus the promise Hong Kong would be governed autonomously. Anything that departs from this set of values is challenged as illegitimate. The fundamental question, from this perspective, has been and is, ‘Is this good and decent and just government or not?’ The view from Beijing and from the pro-Beijing elements in Hong Kong, including the local government itself, is ‘The only real issue is whether the entities with the authority to make the laws are making the laws. If they are doing so in a procedurally proper way, that’s the end of the inquiry. The sovereign has great discretion about how to act, and that’s all that’s happening here.’

That latter perspective informs what otherwise might seem bizarre: the punctiliousness with which China is arguing that this law is going through the right processes, and arcane constitutional arguments about its procedural propriety. Essentially it boils down to government saying, ‘You may not like it substantively, but it’s within our authority to do this.’ The two sides are working from fundamentally different premises and have irreconcilable substantive views about what people should be able to do in Hong Kong without fear of sanction.

The U.S. decided not to recognize Hong Kong as autonomous anymore, but is that counterproductive for the democratic movement in Hong Kong and hanging them out to dry after being supportive last year?

[Secretary of State Mike] Pompeo’s declaration that Hong Kong is not autonomous, that is something that is a term of art in the context of the U.S. Hong Kong Policy Act, which goes back to 1992, and the amendments adopted last year in the Hong Kong Human Rights and Democracy Act. It’s a big symbolic declaration; how much impact it will have is questionable. It will have some—it likely creates visa problems and technology export control issues—but it doesn’t change many important things automatically.

One problem with the effectiveness of Pompeo’s declaration is with the premise, the idea, behind the U.S. law, which is in some ways a little out of date. The idea was that Hong Kong and the People’s Republic of China had very different levels of economic privileges in dealing with the United States. In the period following China’s entry into the [World Trade Organization], that gap has narrowed. The other idea was that Hong Kong was incredibly economically important to China, as a source of capital and as a front-office or airlock providing financial and legal services for the world coming to China. That’s not as much the case as it used to be. It’s still true to some extent, but less so than it was 20 or 30 years ago. 

The idea also was that China would be more sensitive than it has become under Xi Jinping to criticisms that China was breaching legally binding promises made to the United Kingdom, or violating international human rights norms, or backing away from its commitments about Hong Kong’s autonomy. In some ways, the laws that Pompeo invoked are weapons for fighting the last war. 

To the extent that declaring Hong Kong not autonomous matters, it has some self-defeating implications. There is a risk if the U.S. imposes significant sanctions—for example, hitting Hong Kong with the measure deployed in the Trump-era U.S.-China trade war—it will cause harm to the people of Hong Kong whom the U.S. is trying to help. It will have adverse economic consequences in Hong Kong. Perhaps more significantly, it will feed China’s narrative that the U.S. is engaged in foreign interference threatening China’s self-defined ‘core interests’ and telling the Chinese government how it should govern Chinese people, thus stoking Chinese nationalism. A potentially devastating impact for Hong Kong is that the U.S. declaration is potentially a vote of no confidence in the sustainability of many of the things that make Hong Kong as economically dynamic and in many ways appealing culturally or otherwise—the rule of law, civil liberties, and so on.

Has the pandemic affected the timing of the national security legislation?

I think a lot of this is driven by the unspooling of the events following the proposed extradition law and the protests against it, but COVID-19 has, in some ways, made this easier to do now. 

The protests that began last year went quiet in part because of social distancing and COVID measures. They have come back some in response to the security law, but they were effectively shut down, and momentum broken, when COVID was used as a reason to limit public gatherings. In addition, the world is distracted by the pandemic, so to the extent that foreign pressure does matter to the authorities in Beijing, the fact that the world is not as focused on Hong Kong created an opportunity for Beijing to proceed with the security law. 

The really sour and downward-trending relationship now between the U.S. and China is a bit liberating for China in the sense that, with the U.S. viewing the relationship as profoundly adversarial and rivalrous, criticism of China from Washington and any cost it might impose on China is already baked in. The view from Beijing is whether it’s Hong Kong, COVID, Xinjiang, Tibet, jailing human rights lawyers … at some point, there’s a volume discount on acts that prompt foreign criticism.

Would a change of administration in the United States greatly impact that now since we’re six months from potentially electing a new president?

I think you would see some changes and some areas of little change. The idea that what China is doing in Hong Kong is something the U.S. should speak up against and stand up against is a fairly bipartisan view. So is the view that the U.S. should take a tougher line on China across a broad range of issues. That’s pretty bipartisan, too. The roots go back to the Obama administration, and the view was embraced on both sides in the Hillary Clinton-Donald Trump election. It’s become more pronounced since then.

Would Biden be different from Trump? Sure. Under a Biden administration, you likely would see a more collaborative approach with allies to address these issues, rather than a go-it-alone, America-first strategy. On the current Hong Kong issue, Australia and Britain have said a lot of the right things, but a more coordinated international response would be likely to be a bit more effective with China. The same is true on other issues. With Biden in office, I think there would be a little less shooting from the hip or the lip—more of a thinking-through how to take on China on a particular issue, having various measures queued up and more fully worked out or ready to go public.

In the human rights area, you would see differences of emphasis. The Trump administration, for example, Christian religious persecution [is weighted] more than a lot of other issues. You’d see a different emphasis from a Democratic administration. With the Hong Kong issues, the human rights at stake are ones I think no American political party is going to say are not important. On freedom of speech, democratic rights, things of that ilk, where there’s not much rhetorical daylight, although there are differences in the focus and likely efficacy of U.S. policy measures. 

I think one major difference would be a more elaborate and structured policy process inside a Biden administration, where policy and action are more heavily determined by a more deliberative and collaborative process, with means-ends analysis of how we get where we want to go and whether various tools work or don’t work, and what is the collateral cost of using them— and, externally, more attempts to work with allies. Does that solve everything? Almost certainly not. The real problems with Hong Kong are the ones we were talking about earlier, which is China seems either increasingly impervious to foreign criticism or has decided the crisis in Hong Kong is such a big deal they’ll take whatever hit there is to be taken economically or politically to solve the problem. That is not to say we should do nothing; I think that it matters still that there are values the U.S. and others should stand up for, and I think it’s something of a moral imperative if you believe in those values to support the people fighting for them in Hong Kong.