The The Chinese Communist Party’s new security law has criminalized any action it considers subversion, secession, terrorism, and collusion with foreign entities in Hong Kong. The law abruptly puts an end to the political freedoms enjoyed by Hong Kong people. Authorities raided the offices of a research and polling institute associated with the pro-democracy camp on Friday just before the primaries in which it will choose its candidates for the Legislative Council election, and there is certainly more to come. But there is one more reason to be wary of the law: and that is Beijing’s assertion of legal jurisdiction over the entire world.
The wording of section 38 of the law is blunt and makes an unprecedented claim to jurisdiction: Region. “If the provision is implemented as written, Hong Kong authorities could indict and prosecute those who do not ‘have never set foot in the city but who Beijing considers to have broken the law. “If mainland practice to date is a guide – and it is – then definitions don’t really matter,” George Washington University Law School professor Donald Clarke wrote in an analysis, “Anything can be extended as much as necessary to cover something done by the targeted person.”
The CCP could thus use Article 38 to prosecute offenses illegal in China but legal in the West. Theoretically, Westerners could be arrested by security guards from Beijing’s new base in the city, then sent back to the mainland to stand trial there – for the crime of speaking freely in liberal democracies. Or as Clarke said, the CCP “claims extraterritorial jurisdiction over every person on the planet.“
It’s not just a theoretical concern either, says Kevin Carrico, senior researcher at Monash University in Melbourne. In 2015, Beijing kidnapped five employees of Causeway Bay Books, a store that sold books on political topics considered sensitive by mainland authorities, in violation of Hong Kong’s Basic Law. The kidnappings demonstrate the CCP’s desire for extraterritorial law enforcement authority, Carrico said in an email, and the new law “just gives a false appearance of legality” to its efforts to gain such authority.
It is not unusual for countries to make legal claims that extend beyond their borders or punish their own nationals for crimes they commit abroad. But for a country to prosecute a foreigner for acts committed abroad, it would have to cause harm to that country according to widely accepted interpretations of international law. The other way countries could claim jurisdiction over foreigners living abroad is through extradition treaties. Without such treaties, says Terri Marsh, executive director of the Human Rights Law Foundation, it would be very difficult for China to reach non-Chinese citizens living in foreign countries. “China’s foray into our sovereignty is a demonstration of why precisely other nations that are also sovereign should not comply or cooperate in any way,” Marsh said.
It turns out that around 20 countries have extradition treaties with Hong Kong, including several that have not signed such agreements with the mainland. The Inter-Parliamentary Alliance on China, a group comprising lawmakers from 13 countries, following the enactment of the new security law, campaigned for countries to rescind these treaties. In recent days, Australia and Canada have suspended theirs, angering Beijing, and the United States may soon follow suit. Others, like the Netherlands, have warned their citizens against traveling to Hong Kong.
While most countries do not extradite an individual on the basis of political charges, Jerome Cohen, a Chinese law expert at New York University Law School, points out Beijing’s story of concocting bogus charges of conventional crimes, such as tax evasion, to target dissidents. Just this week, Xu Zhangrun, a prominent CCP critic, was arrested in Beijing on charges of prostitution. False claims won’t be a problem in countries with strong judicial systems, like France, but Cohen says he is wary of countries that voted with China at the UN Human Rights Council, and even some European countries.
Besides the risk of extradition, the high concentration of journalists and foreign businessmen in Hong Kong would make it “a very convenient target, if China wanted to do something to take some Americans hostage”, explains Ho-fung Hung, professor at the University of Hong Kong. Johns Hopkins University. It notes the detention in 2018 of two Canadian citizens in retaliation for Ottawa’s arrest of Huawei’s chief financial officer, Meng Wanzhou. While hostage diplomacy already existed on the mainland, Americans critical of the Chinese Communist Party were generally denied visas to travel to China, ending up in Hong Kong instead. They enjoyed immunity from Beijing’s reach there, but with the security law, Beijing could well detain and try them for speaking out against the CCP in other countries. Carrico issues a terrible warning: “Traveling in China and Hong Kong today is actually taking the same type of risk as someone going to Pyongyang.”
The danger is particularly acute for Taiwanese individuals and organizations. The leaders in Taipei have watched the crackdown in Hong Kong with apprehension, fearing that the CCP would then focus on them. Carrico notes that Hong Kong, which despite its former autonomy from the mainland did not deviate from Beijing’s official position on Taiwan, had so far allowed Taiwanese organizations to operate in the city. But the [national-security law] means the end of this, and if I was related in any way to the Taiwanese government and living in Hong Kong right now, I would leave immediately. In fact, the law subjects foreign and Taiwan-based organizations with offices in Hong Kong to onerous regulations requiring cooperation with the city’s police commissioner. According to the new rules released this week, the city police can even ask staff of “foreign and Taiwanese political organizations” in Hong Kong to provide personal and financial information about their organizations.
It is important to note that until Hong Kong’s rulers release new guidelines on the implementation of the law, the precise nature of the danger it poses will remain unclear. Cohen predicts that section 38 will be interpreted more restrictively than its wording suggests. “Now even China’s national criminal law does not go as far as this new national security law could be interpreted,” he said, noting that the mainland’s criminal code would not lead to prosecution of foreigners for legal political speech in their own country. He believed that the broad wording of article 38 was the result of a lack of time faced by those responsible for its drafting. But he is careful to stress that he is only making one prediction, and that the law is already intimidating some activists to silence. “They are already being deterred, not only in Hong Kong, but around the world,” he says.