Will new American law safeguard Hong Kong?
Written by Markandeya Karthik
On October 15, 2019, the Hong Kong Human Rights and Democracy Act of 2019 was passed in the United States House of Representatives. This act enables action against individuals who are held responsible for undermining HK’s autonomy. Additionally, it strengthens the HK Policy Act of 1992 used by the U.S. government to judge whether the HK administration’s political behavior should allow the U.S. to continue treating the city as a separate trading entity from China. The 2019 bill now awaits a vote in the Senate and on passing, will become law.
As a Hong Kong resident, I’m conflicted. Why should a government, other than one representative of Hong Kong’s people, have any say in how HK’s affairs are run? And, why would the U.S. choose to make this statement at a point in time when HK is struggling with its own problems regarding how its affairs are conducted?
To understand things better I decided to get to the root of the issue and understand the HK Policy Act of 1992, first.
The 1992 Act allowed the United States to treat Hong Kong separately from Mainland China for matters concerning trade, export and economic control even after the 1997 handover from Britain. It detailed how the U.S. would treat HK on issues like bilateral ties, commerce, transportation, cultural and educational exchanges, issues that typically concern economic relationships between countries even though HK was to soon be a part of China. This Act is a cornerstone for the growth and success of HK as one of the premier economic and financial centres in the world.
But, it came with a check to ensure that HK remained in-line with the rule of law and human rights, independent of China. “Should Hong Kong become less autonomous, the U.S. president may change the way the laws are applied.” It is important to note that check was an “executive decision”. A decision taken by the President of the U.S. and something that has so far not been considered.
In 1992, China then was not what it is today - one of the most militarily and economically powerful countries in the world. HK was far more prosperous than the ten biggest Chinese cities put together. The 1992 Act was designed to serve two possible aims. It enabled businesses to use HK as a gateway to China since the US saw great potential there. And, it tried to ensure that the agreement protecedt HK from any ill effects of becoming part of China, a country with a different government, legal system, economy, financial system; Hong Kong’s human rights and culture would be safeguarded.
Things made sense to me, now. The U.S. had decided to give HK some special privileges and these special privileges came with checks (but weak ones). As long as HK and its people were able to enjoy the fruits of their association with a growing and prosperous China while keeping their autonomy, human rights and the rule of law intact, it also benefited the U.S. and things were fine.
2019 saw the new extradition law proposed by the HK administration and the resulting protests and police action. This led to the 2019 bill that makes major amendments to the 1992 Act. Here are the big ones -
The U.S. Department of State has to now annually answer a question in Congress - Has China eroded HK’s civil liberties and the rule of law as protected by HK’s Basic Law ? The answer will be used to decide on continuing HK’s special status.
The U.S. President has to “provide Congress an assessment as to whether to withdraw from the U.S.-HK extradition treaty and actions needed to protect U.S. citizens and national security interests, if HK (1) amends its laws to allow the rendition of individuals to countries that lack defendants' rights protections, or (2) passes a national security law.”
It allows the U.S. State Department to issue work and study visas to qualified HK residents “even if the applicant had been arrested for participating in certain nonviolent protests supporting human rights or the rule of law.”
The new bill requires the U.S. President to identify individuals “responsible for abducting and torturing people for exercising internationally recognized human rights in Hong Kong. The bill bars such individuals from entering the United States and imposes sanctions on them.”
While each modification is significant, the most crucial change is that decisions are no longer executive authority (a Presidential decision). They are now legislative authority (Congress decides). This makes it harder for HK since there will be much more scrutiny of the way the HK administration works.
Now to the crux of the issue: the U.S. is using its status and responsibility as a major international power to pressure the authorities in HK to stick to a contract created in 1992 or lose privileges under that contract. The U.S. has this right and needs to show its citizens and the world that they stand for certain values to which recipients of U.S. privileges are obliged to adhere. This is being done now since the commitments made to the people of Hong Kong are seen to be threatened.
For the people of Hong Kong, the Act of 2019 is an externally enforced mechanism to ensure that their administration sticks to its commitments to them. There is still some distance for the bill to cover before it becomes law. If it does, the record of the administration in Hong Kong on adherence to human rights, the rule of law and upholding HK’s autonomy will come under official scrutiny.
What impact the law will really have is hard to gauge. However, one thing is for sure, whether the administration lives up to U.S. expectations or not, it is the residents of Hong Kong who will face the outcome.