(中文版本: https://bit.ly/35U3PNN)

Congratulations, fellow Hong Kongers. Due to all your hard work, the Hong Kong Human Rights and Democracy Act (HKHRDA) has become law of the United States. What next?

The first part of this explainer series has gained some unexpected attention, for which DC4HK is incredibly honored. While that article mainly looked back on the path we have trodden, this part of our explainer series will be focused on the future: implications and what to expect after the enactment of HKHRDA.

While it seems true to me — as pointed out by Prof. Julian Ku (*1) — that HKHRDA has more of a symbolic value than practical legal implications considering some other pre-existing statutes that serve similar purposes, I also think that it would be worthwhile to conduct an in-depth reading of the bill to at least have an idea of what we are to keep an eye on in the future, and clarify some other misunderstandings along the way. Again, consider this no more than my personal reading report of the official documents.

HKHRDA is an act to amend the United States-Hong Kong Policy Act of 1992 and require some additional reports on Hong Kong from the executive branch. It should have been well circulated that there are five major proposals in HKHRDA (*2):

(1) Annual report concerning the autonomy of Hong Kong

(2) Visa protection for Hong Kong protestors

(3) Annual report concerning export control and UN sanctions on Hong Kong

(4) Report on protection of US citizens in Hong Kong in case of extradition legislation

(5) Sanction report on personnel violating human rights in Hong Kong

(Codification mine, which I shall use throughout this article.)

Among these five, there is no definite event to come with (2) and (4), so I shall just comment briefly on what that they tell us to keep an eye on, and then go on to discuss the expected timeframe of (1), (3) and (5) and their implications.

1. Keep an eye out: visa protection and extradition legislation report

While the other three items have a definite date for their required reports, (4) requires a report only when “the President determines that legislation proposed or enacted by the Government of Hong Kong would put United States citizens at risk of extradition or rendition to the People’s Republic of China or to other countries that lack protections for the rights of defendants”, and (2) is supposed to be an ongoing policy for visas.

I have read summaries floating around that lists the visa protection in HKHRDA as limited to non-violent crimes related to the protests, which is in fact false. As the bill writes:

“[A]pplications for visas to enter, study, or work in the United States, which are submitted by otherwise qualified applicants who resided in Hong Kong in 2014 and later, may not be denied primarily on the basis of the applicant’s subjection to politically-motivated arrest, detention, or other adverse government action.” (*2)

Thus, even a protestor arrested and charged by the police with rioting can still be covered by this section of the bill, as long as a case can be made that the arrest is politically-motivated. That said, it is worth mentioning that:

the list of subjection does not (explicitly) include politically-motivated sentencing,

the protection does not cover visas to permanently reside in the United States,

the consular officials still has broad discretion as to whether the denial is primarily based on those arrests, and

as Prof. Ku points out, “individual visa applicants cannot […] seek judicial review of a purported violation of this law [by consular officials]” (*1).

So there is no guarantee of a comprehensive visa safety net under HKHRDA, and we need to keep an eye on the Consulate.

As for the report of extradition legislation, now that the extradition bill is retracted, this section might not be of use until the Chinese or Hong Kong government decides that another such bill (in whatever form) is to be put forward, or until it is discovered that extradition from Hong Kong to China can be done under the current legal framework of Hong Kong. It is not necessary, I believe, for me to remind Hong Kongers to keep an eye on that.

2. March 2020 (predicted): autonomy report on Hong Kong

While the sanction report and export control report are required “not later than 180 days after the date of the enactment of this Act”, there is no such requirement on the autonomy report from the Secretary of State, other than it be done “on at least an annual basis”. Yet, it can be predicted that the first report might be submitted to the Congress on March 31, 2020.

HKHRDA writes that it shall be issued “in conjunction with the report required under section 301” of the United States-Hong Kong Policy Act of 1992, which required, in its original form, the Secretary of State to evaluate the United States-Hong Kong relationship every March 31 until 2000 (*3). Last year, however, John S. McCain National Defense Authorization Act for Fiscal Year 2019 was passed, which extended that annual evaluation to 2024 (*4), implying that the Secretary of State will issue the evaluation of United States-Hong Kong relationship on March 31, 2020 per request of this bill, and therefore very likely will also release the autonomy report on that date per request of HKHRDA.

Before detailing implications of this report from the Secretary of State, it should be clarified that even if it is decided that Hong Kong does not continue to “warrant treatment under United States law in the same manner as United States laws were applied to Hong Kong before July 1, 1997”, it is not simply a matter of one or two bills or policies being retracted (certainly not the United States-Hong Kong Policy Act of 1992 itself); the Congress or the President would still have to decide which particular law or agreement regarding Hong Kong needs to be dealt with. Bills like S.342 of the 105th Congress, which grants privileges to the Hong Kong Economic and Trade Offices (*5), and treaties like Agreement for the Surrender of Fugitive Offenders between United States and Hong Kong (*6), are specific instances of such laws and agreements to be potentially reconsidered under HKHRDA.

The substantial role of this autonomy report by Secretary of State, then, is (only) to inform Congress and the President in case “Hong Kong is not legally competent to carry out its obligations under any such treaty or other international agreement” or “Hong Kong is not sufficiently autonomous to justify treatment under a particular law of the United States” (*3). In other words, even after a report that shows Hong Kong’s serious deterioration in legal competence and autonomy, it would still be subject to further determination which particular law or agreement is to be amended/revoked through legislative process or executive order (e.g. tariffs), in accordance with United States-Hong Kong Policy Act of 1992. This is going to be a long battle indeed.

3. June 2020 (deadline): export and sanction reports

Both the export and sanction reports, are required no later than 180 days after the enactment of HKHRDA. Latest by June, therefore, we will see both of these reports submitted by the Secretary of Commerce and the President respectively.

As of now, there is no United Nations sanctions imposed on Hong Kong itself (*7), but there could be transshipment or reexportation through Hong Kong to sanctioned countries like Iran and North Korea — and separately on the watchlist, China — which will be instances of activities to be reported by the Secretary of Commerce. Senate version of the PROTECT Act that prohibits the commercial export of munition (e.g. tear gas and water cannon) to the Hong Kong Police Force, S.2710 (*8), which has been signed into law along with HKHRDA, will also be part of U.S. export control on Hong Kong to be monitored under HKHRDA.

The item that attracted most attention from Hong Kongers is, of course, the sanction report of individuals by the President. Starting on a pessimistic note, I think Prof. Ku’s reading is quite right that although it is written on the bill that the President shall submit the report, the report is supposed to identify personnel that the President determines are responsible for human rights violations, which legally means that the President can determine that no one is responsible for human rights violations in Hong Kong (*1). With that in mind, let’s see what could happen if the President does submit some names to the Congress.

Once someone’s name is included in the report, the President shall impose sanctions on that individual in the form of prohibiting transactions of their U.S. based properties (to the extent necessary, deemed by the President) and revoking/denial of visas, and penalize violations of these prohibitions in accordance with fine or imprisonment (*9), with powers very similar to that allowed by the Global Magnitsky Act (*10). (The rumor that U.S. based assets of such person will be confiscated is thus false.) It should also be noted that with the sunset clause of HKHRDA, “any sanctions imposed under this section, shall terminate on the date that is 5 years after the date of the enactment of this Act” (*2). So perhaps the sanctions would be much less potent than popular conception, given that the sanctioned persons will have their assets frozen and entry into the United States denied for less than 5 years.

Still, it might be worthwhile to try our best and push for such deterrence on human rights violators. The S. 1838 criterion for inclusion to the list are responsibility in:

(A) the extrajudicial rendition, arbitrary detention, or torture of any person in Hong Kong; or (B) other gross violations of internationally recognized human rights in Hong Kong, (*1)

which are quite vague and open to some interpretation. More critically, the bill also gives us some clues if we want to contribute to the drafting of that list. The President is required to consider sources from:

(A) information provided jointly by the chairperson and ranking member of each of the appropriate congressional committees; and (B) information obtained by other countries or reputable nongovernmental organizations that monitor violations of human rights abuses. (*1)

The former of which refers to Senators in Committees such as the Committee on Foreign Relations of the Senate, and the latter, which I think would be much more accessible, refers to international organizations such as Amnesty International which have been very active in monitoring the human rights violations during the movement, and also Hong Kong based organizations very active in international lobbying, such as HKIAD and Demosisto. I recommend that Hong Kongers:

send concrete evidence to these organizations, communicate with them and assist them in drafting reports of human rights violations, which might in turn form the basis of the President’s report. (Or, alternatively, establish an organization by Hong Kongers for this purpose!)

collect evidence also on the harassing and threatening behaviors by Chinese controlled state media such as Wen Wei Po and Ta Kung Po for inclusion into the report, as a reference for the Secretary of State’s consideration in issuing work visa to them, in accordance with section 9 of the bill. (*2)

Conclusion

Therefore, important implications of the HKHRDA might soon follow in 2020, but keeping in mind the 5 year expiry date of the sanctions, and also the substantial decisions that might follow the autonomy report, the battle for democracy and freedom in Hong Kong still has to go on for some time. Hang in there, fellow Hong Kongers.

We thank Mr. Craig Choy from Progressive Lawyers Group of Hong Kong and Prof. Julian Ku at Hofstra University for their review and advice on this article.

About the author: C.H. Jeffrey Tsoi is a Philosophy Ph.D. student at Georgetown University, and a member of DC4HK.

References:

(*1) Ku, J. (2019). The Hong Kong Human Rights and Democracy Act Is Redundant, but Still Worthwhile.

https://www.lawfareblog.com/hong-kong-human-rights-and-democracy-act-redundant-still-worthwhile

(*2) Hong Kong Human Rights and Democracy Act of 2019, 116th Congress (2019).

https://www.congress.gov/116/bills/s1838/BILLS-116s1838es.pdf

(*3) United States-Hong Kong Policy Act of 1992, 102nd Congress (1992).

https://www.congress.gov/bill/102nd-congress/senate-bill/1731/text

(*4) John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115–232., § 1256, 132 Stat. 2057 (2018).

https://www.congress.gov/bill/115th-congress/house-bill/5515/text?q=%7B%22search%22%3A%5B%22hong+kong%22%5D%7D&r=1&s=3

(*5) A bill to extend certain privileges, exemptions, and immunities to Hong Kong Economic and Trade Offices. 105th Congress (1997).

https://www.congress.gov/bill/105th-congress/senate-bill/342?q=%7B%22search%22%3A%5B%22hong+kong%22%5D%7D&s=3&r=17

(*6) Agreement for the Surrender of Fugitive Offenders, U.S.-H.K., Dec. 20, 1996, TIAS 98–121.

https://www.state.gov/wp-content/uploads/2019/02/98-121-Hong-Kong-Law-Enforcement-Extradition-12.20.1996-1.pdf

(*7) United Nations. (2019). Sanctions and Other Committees. https://www.un.org/securitycouncil/content/repertoire/sanctions-and-other-committees

(*8) A bill to prohibit the commercial export of covered munitions items to the Hong Kong Police Force. 116th Congress (2019).

https://www.congress.gov/116/bills/s2710/BILLS-116s2710enr.pdf

(*9) International Emergency Economic Powers Act, Pub. L. 95–223, §206(b), 91 Stat. 1628 (1977).

https://www.govinfo.gov/content/pkg/STATUTE-91/pdf/STATUTE-91-Pg1625.pdf

(*10) Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. L. 112–208, §405–406, 126 Stat. 1496 (2012)

https://www.govinfo.gov/content/pkg/PLAW-112publ208/pdf/PLAW-112publ208.pdf