The full text of Hong Kong’s controversial new national security law came out late at night on June 30, the day it was enacted. Lawyers and legal scholars were quick to dissect the text and offer their analysis. In those early hours, one feature of the legislation stood out.
Its 38th article seems to give the national security law (NSL) boundless reach. The text states that the NSL, in addition to covering anyone in Hong Kong, regardless of nationality or residency status, also applies to offenses committed against Hong Kong “from outside the Region by a person who is not a permanent resident of the Region.”
“The scope of the law exceeds the wildest of expectations,” said Cora Chan, associate professor of law at the University of Hong Kong.
Legal experts question the feasibility of enforcing Article 38 on foreign nationals outside China, and its massive jurisdiction won’t be tested until the first case arises. But the provision’s sweeping latitude and threats of detention and surveillance are enough to prompt self-censorship and discourage visitors from traveling to Hong Kong—the kind of fallout that could undercut business confidence in the financial hub.
“The sheer uncertainty of when Beijing would feel the need to use the law…will be the main way through which the law reaps its effect: by chilling conduct,” Chan said.
Extraterritorial jurisdiction
Beijing argues that the NSL will bring stability to Hong Kong and reinforce the “one country, two systems” framework established in Britain’s 1997 handover of the city. However, the text of the law says its enforcement goes beyond that “one country”; in fact, it professes to cover everyone, everywhere.
“I know of no reason not to think it means what it appears to say: It is asserting extraterritorial jurisdiction over every person on the planet,” Donald C. Clarke, a professor at George Washington University who specializes in Chinese law, wrote in a June 30 blog post.
Clarke wrote that Article 38 gives the NSL—which covers the vaguely defined offenses of secession, subversion, terrorist activities, and collusion with foreign forces—“an even broader reach than mainland [China’s] criminal law” that is limited to crimes committed within China.
China’s foreign ministry, for its part, said the law “will only target very few criminals but protect the vast majority of Hong Kong people.” Hong Kong Chief Executive Carrie Lam on Tuesday called the law “relatively mild as far as national security laws are concerned” and dismissed fears of the NSL’s impact on Hong Kong, saying, “This is not doom and gloom.”
When a government claims extraterritorial jurisdiction, it is extending its legal power beyond the borders of its country. Many countries have extraterritorial jurisdiction laws that apply to their own citizens, usually for serious crimes committed in another country, or when a suspect flees abroad.
U.S. law, for instance, claims extraterritorial jurisdiction for the arrest and return to the U.S. of American citizens and nationals. Under the U.K.’s extraterritorial jurisdiction policy, citizens and residents who commit certain violent and sexual crimes outside the U.K. can be prosecuted in the U.K. if they are physically present in the territory, including by extradition.
Article 38 differs in that it asserts extraterritorial jurisdiction over people who are not residents of Hong Kong, meaning any person on earth could technically violate the NSL and face prosecution.
Legal experts suggest the likelihood of enforcing such a claim on foreign nationals in other countries is as infeasible as it sounds.
How would it be enforced?
Article 38 does not explicitly mention extradition, but carrying out the statute as written would rely a great deal on the process in which authorities in one country hand a person accused of a crime over to law enforcement in the jurisdiction where the charges were filed.
Twenty countries have extradition agreements with Hong Kong, including the U.S., the U.K., Canada, Australia, France, Germany, and New Zealand.
Already, nations are taking steps to sever that relationship.
Canada suspended its extradition treaty with Hong Kong on July 3 in response to “grave concern” over the new law, Canadian Prime Minister Justin Trudeau said.
There is mounting pressure on other countries to follow suit. The Inter-Parliamentary Alliance on China (IPAC)—a coalition of legislators from the U.S., Canada, Europe, Uganda, and elsewhere, and which formed in June to reform democratic countries’ approach to China—called on its members to suspend their Hong Kong extradition agreements.
IPAC said on Saturday that Hong Kong’s rule of law has been “severely compromised following the imposition of the so-called national security law,” and said its members are “urgently seeking assurances from their respective governments that no such extraditions will take place and that existing treaties with [Hong Kong] are reviewed,” according to the South China Morning Post.
But even if extradition treaties stay intact, exercising them is no cinch.
If a person in a country with an extradition agreement with Hong Kong committed a crime under the NSL, that person would “not necessarily” be extradited to Hong Kong, as Hong Kong extradition law “only applies if the offense is also a criminal offense in the reciprocal country,” said Andrew Powner, managing partner at Hong Kong–based criminal defense law firm Haldanes.
There are also existing legal and human rights protections that prevent extradition if it is deemed politically motivated, Powner said.
“Extradition is a lengthy and complex process that is reserved for only the most serious cases,” and there are built-in checks and balances that allow different levels of appeal against extradition that “can be argued before the courts for many years,” Powner said.
For people who live in countries that don’t have extradition treaties with Hong Kong, they could only face prosecution under the NSL if they were to travel to or through Hong Kong—a possible threat to the Asian transit hub.
The NSL could also be enforced if the person is subject to an Interpol Red Notice and they transit through a country that has an extradition treaty with Hong Kong, Powner said. At the same time, Interpol has protections and appeal procedures, and a Red Notice “does not necessarily trigger the start of the extradition process [and] is reserved for only the most serious cases.”
Jerome Cohen, a Chinese law expert and professor at New York University, wrote in a July 2 blog post that there will be a “huge” international reaction to any attempt by China to punish a foreign national for acting in violation of the NSL if the act is “not proved to have serious consequences at home or against the nationals of China abroad.”
“The international community is likely to reject any attempt at such a claim as another [People’s Republic of China] violation of public international law,” Cohen wrote.
The ‘chilling effect’
Despite the jurisdictional challenges and the likely international outcry, Article 38 could still succeed in discouraging dissent and criticism of Hong Kong worldwide.
The law is “so vague and broad” that many people—foreign journalists, scholars, political activists—may avoid traveling to Hong Kong over fears of investigation and surveillance under the NSL, said Chan.
Chan said Hong Kong’s financial importance as a conduit for mainland Chinese companies and money means that, in her estimation, “the law is not going to be used frequently or wantonly to target businesses and investors, at least in the short run.”
But, Chan said, the law could stymie freedom of expression and academic freedom in the city and “diminish the attractiveness of [Hong Kong] for investors and talent,” who traditionally have been drawn to the city’s rule of law and independent judiciary.
Reporters Without Borders, an international nonprofit for defending press freedom, condemned the new law in a July 2 statement, saying the NSL would stifle press freedom in Hong Kong and beyond, as journalists worldwide consider the ramifications of Article 38.
“This grotesque regulation, that is widely open to interpretation, not only gives the Beijing regime a tool to harass and punish journalists in Hong Kong under appearances of legality, but it also allows China to intimidate and threaten news commentators abroad with incarceration,” Cédric Alviani, East Asia bureau head for Reporters Without Borders, said in the statement.
The provisions of Article 38, Powner wrote on the Haldanes website, seem “exceptionally difficult to enforce and perhaps are designed more as a deterrent to stop persons who advocate matters covered by the NSL from setting foot in Hong Kong.”
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