Hong Kong's National Security Law: how dangerous is Article 38? | The China Collection

Hong Kong's National Security Law: how dangerous is Article 38? | The China Collection

by Don Clarke (George Washington Law School)

Many people who live outside of mainland China and Hong Kong and who have been critical of the Chinese Party-state are wondering about their safety in the wake of Hong Kong’s National Security Law (the “NSL” or the “Law”), which in Article 38 purports to criminalize violations of the law committed by anyone anywhere in the world. (I discussed the details in an earlier blog post.)

My short take on this is that I don’t think anyone is in significantly greater danger than they were before the NSL came into effect provided they stay out of Hong Kong. Here’s why I think so. My analysis will look both at the law and practical realities.

I. Mainland PRC

A. Law

Let’s look first at mainland PRC law, which does not apply in Hong Kong. Criticism of the Party-state, mockery of leaders, even anti-Party-state activism, etc. by non-PRC citizens outside the PRC mainland did not generally subject non-PRC citizens to criminal liability under mainland PRC law. A non-PRC citizen committing an act outside the mainland is criminally liable under mainland PRC law only if (a) the act would get a sentence of at least three years under the PRC Criminal Law, and (b) the act is a crime in the place where committed. Thus, typical acts of speech—tweeting, blogging, teaching, writing op-eds, etc.—would not make one liable.

B. Reality

Most people know by now that relying on the words of the law in China can be risky. (Who would have thought that making a mocking reference to “Steamed Bun Xi” in a small, private WeChat group could be grounds for imprisonment for “picking quarrels and stirring up trouble”?) Given that China is detaining even people who have done nothing in order to have hostages [kidnapped Canadians | kidnapped Americans], it would be foolhardy indeed to assure anyone that they could do anything offensive to the Party-state outside of mainland China that is permitted by local law and not have to worry about getting arrested if they went to China. In practice, however, it seems that detentions by China of foreign critics, even on trumped-up grounds, are few.

There are three cases I know of—there may of course be more—where non-PRC citizens have been subject to criminal liability in China for (possibly) things they did outside of the mainland PRC. ***[KEEP READING]