A Human Rights and
Rule of Law Analysis
by Lydia Wong and Thomas E. Kellogg
Georgetown Center for Asian Law
EXECUTIVE SUMMARY
The National Security Law (NSL) constitutes one of the greatest threats to
human rights and the rule of law in Hong Kong since the 1997 handover.
This report analyzes the key elements of the NSL, and attempts to gauge
the new law’s impact on human rights and the rule of law in Hong Kong.
The report also analyzes the first six months of implementation of the new law, seeking to understand how
the law is being used, who is being targeted, and which behaviors are being criminalized. The report is
based on interviews with Hong Kong actors from various backgrounds, and also a wide-ranging review of
the public record, including press reports, court documents, and other publicly-available sources.
Our key findings include:
• The Hong Kong Special Administrative Region (SAR) government and the central government have
made vigorous use of the NSL over the past seven months, with over 100 arrests by the newly-created
national security department in the Hong Kong police force, mostly for NSL crimes.
• The threat posed to Hong Kong’s autonomy by the passage of the NSL by the central government is
significant. At the same time, the creation of hybrid Mainland-Hong Kong national security bodies
also directly threatens the Basic Law’s One Country, Two Systems framework and the oft-cited mantra
of Hong Kong people ruling Hong Kong.
• According to publicly-available information on the cases that have emerged thus far, the vast majority
of initial NSL arrests would not be considered national security cases in other liberal constitutional
jurisdictions. This raises questions about whether Hong Kong is beginning to diverge from its historically
liberal, rule of law legal and political culture.
• The cases that have emerged thus far raise serious concerns that the NSL is being used to punish the
exercise of basic political rights by the government’s peaceful political opponents and its critics. Prosecution
of individuals for exercising their rights to free expression, association, or assembly would violate Hong
Kong and Beijing’s commitments under international human rights law.
• The impact of the NSL has been felt well beyond the more than 100 individuals who have been arrested
by the Department for Safeguarding National Security (NSD). According to our interviews, self-censorship – among journalists, academics, lawyers, activists, and members of the general public – has emerged as a serious problem, one that could blunt Hong Kong’s longstanding tradition of freewheeling
and robust public debate.
• Many that we spoke to also feared that the NSL would have an impact on the day-to-day work of
Hong Kong’s government bureaucracy, and that NSL values and norms could shape policy formation
in potentially damaging ways for years to come.
If current trends continue, Hong Kong could become a fundamentally different place, one that enjoys fewer
freedoms and rights, with social, political, and legal institutions that are less vibrant, less independent, and
less effective than they once were. As our analysis makes clear, the future of the One Country, Two systems
model, and of Hong Kong’s autonomy, are in jeopardy.
This report proceeds in two parts.
In Part One, we offer a human rights and rule of law analysis of the NSL
itself. We pay special attention to the ways in which the NSL infringes on the autonomy of Hong Kong’s
core political and legal institutions, and also the ways in which the newly-created criminal provisions could
be used to punish the peaceful exercise of core political rights, in potential violation of both the Basic Law
and the obligation of the Hong Kong government to adhere to the International Covenant on Civil and
Political Rights (ICCPR).
In Part Two, we focus on the implementation of the law thus far. Since its implementation on June 30, 2020,
the law has been used in three key ways: to limit certain forms of political speech, with a particular focus on
pro-independence speech and key slogans from the 2019 protests movement; to limit foreign contacts, and
in particular to break ties between Hong Kong activists and the U.S. and European governments; and to
target opposition politicians and activists, many of whom are longtime pillars of Hong Kong’s political scene.
No comments:
Post a Comment