The U.S. Senate unanimously passed the Hong Kong Human Rights and Democracy Act of 2019 in response to recent concerns regarding the autonomy of Hong Kong and the civil liberties of its citizens. The Act seems to be a measured response allowing the United States to signal disapproval to Beijing and the International community without risking real reprisal from China.
Since June 2019, mass protests have gripped Hong Kong. The protests were originally in response to a bill that would have allowed the extradition of criminal suspects from Hong Kong to regions previously not subject to an extradition agreement, notably mainland China and Macau. The bill has since been withdrawn by Hong Kong’s Chief Executive Carrie Lam, but the protests have grown into a larger movement focused on investigations of police conduct and political accountability. In autumn 2019, the situation in Hong Kong became much more dire with accounts of violent interactions between the police and protesters becoming commonplace.
History of Hong Kong’s Place in the International System
Though Hong Kong is a Chinese territory, as a result of its return from the United Kingdom under a “one country, two systems” philosophy, it has enjoyed special treatment as a semi-autonomous region both by China itself and the international community. Of particular note is the United States-Hong Kong Policy Act of 1992. This legislation enables Hong Kong to receive the same treatment under U.S. law as it had prior to its return to China, and to be considered a separate customs and trading zone from China.
Because of its preferential treatment by the international community, Hong Kong has served as the pre-eminent Chinese market for raising equity, issuing debt, and attracting direct investment for mainland China.
U.S. Legislative Response to the Protests
On November 19, in response to recent concerns regarding the autonomy of Hong Kong and the civil liberties of its citizens, the U.S. Senate unanimously passed the Hong Kong Human Rights and Democracy Act of 2019. Although the House of Representatives had previously passed a slightly different version of the act unanimously, the Senate version was adopted and passed by voice vote on November 20 in the interest of expediency. President Trump signed the Bill into law on November 27. This post seeks to outline the major provisions of the act and briefly explain their relevance.
The Act sets out several aims, including annual reports to Congress by the Departments of State and Commerce; specialized treatment for Hong Kong visa applicants; the protection of U.S. citizens and others from rendition to China; and the imposition of sanctions. The act also puts forward two non-binding “sense of Congress” resolutions: one regards the actions of Chinese state-controlled media, and the other calls for administrative reconsideration of export controls with respect to Hong Kong. Each portion is discussed further below.
Annual State Report
The Act requires the Secretary of State to issue a certification of Congress at least once a year indicating whether Hong Kong should continue to receive its special legal treatment under U.S. law. Factors relevant to this analysis include: sanctions enforcement; freedom of assembly; freedom of expression; freedom of the press, including Internet and social media; and universal suffrage including the ultimate aim of election of the Chief Executive and all members of Hong Kong’s Legislative Council by universal suffrage. The report must also include: an assessment of the degree of erosions to autonomy in Hong Kong with regard to the aforementioned factors resulting from actions by China; evaluation of specific impacts to areas of cooperation between the U.S. and Hong Kong resulting from erosions of the autonomy of Hong Kong or failures by the government of Hong Kong to fulfill obligations with the U.S. under international agreements; and a list of any specific actions taken by the U.S. government in response to the two aforementioned evaluations. In conducting the evaluations, the Secretary of State should consider the terms, obligations, and expectations of the legal agreement transferring control of Hong Kong from the U.K. to China, known as the Joint Declaration. The Secretary of State may, however, waive the certification requirement if the Secretary believes waiver to be in the national security interests of the U.S. and the Secretary notifies the House Foreign Affairs and Senate Foreign Relations Committees prior to the date on which the waiver takes effect.
Annual Commerce Report
The Act requires that, for the seven years that follow its enactment, the Secretary of Commerce, in consultation with the Secretaries of the Treasury and State, must issue an annual report to Congress including: assessment of the nature and extent of violations of U.S. export control and sanctions laws occurring in Honk Kong; assessment of whether dual use items (goods, software, or technology capable of both civilian and military applications) subject to export control by the United States are being transshipped through Hong Kong, and used to develop systems for mass surveillance or predictive policing, or China’s “social credit system”; an assessment of efforts by the Chinese government to use Hong Kong’s special customs status to import items into China in violation of U.S. export control laws; an assessment of whether the Government of Hong Kong has adequately enforced sanctions imposed by the United Nations; a description of goods and services trans-shipped or reexported through Hong Kong in violation of sanctions; and an assessment of whether shortcomings in the enforcement of export controls or sanctions by the government of Hong Kong necessitates assignment of additional personnel to the U.S. consulate in Hong Kong.
Special Visa Treatment
The Act prevents the denial of work or study visa applicants from Hong Kong if based primarily on an applicant’s politically motivated arrest, detention, or other adverse government action. Additionally, the Secretary of State is instructed to contact representatives of other democratic countries to inform them of the U.S. policy regarding politically motivated arrests in Hong Kong, and to encourage them to take similar steps to ensure the rights of nonviolent protesters are protected from discrimination due to the actions of the governments of Hong Kong and China.
The Act requires the President, no later than thirty days after the President determines legislation enacted or proposed by the government of Hong Kong would put U.S. citizens at risk of rendition or extradition to China, “or to other countries that lack protections for the rights of defendants,” to submit a report to appropriate congressional committees. The report must include: a strategy for protecting U.S. citizens and businesses in Hong Kong; an assessment of the potential risks of the legislation to U.S. citizens in Hong Kong; and a determination of whether additional resources are needed for American citizen services at the U.S. consulate in Hong Kong, and whether the government of Hong Kong is legally competent to administer existing enforcement agreements for the surrender of fugitive offenders with the United States.
Imposition of Sanctions
The Act requires the President to submit a report to appropriate congressional committees identifying foreign persons determined to be responsible for violations of internationally recognized human rights in Hong Kong. In preparing the report the President must consider information provided by the chairperson and ranking member of each of the appropriate congressional committees and information obtained by other countries or reputable NGOs that monitor human rights abuses. Sanctions to be imposed upon persons identified in the President’s report include: asset blocking; ineligibility for visas, admission or parole; the revocation of current visas; and certain penalties provided for by the International Emergency Economic Powers Act. The President may, however, waive the application of sanctions with respect to an identified person, if the President believes such a waiver is in the national interest. The President may also terminate the application of sanctions if the President determines and reports to the appropriate congressional committees not less than 15 days before the termination is to take effect that: information exists that the person did not engage in the activity for which the sanctions were imposed; the person has been prosecuted appropriately for the activity for which the sanctions were imposed; the person has credibly demonstrated a change in behavior and committed to not engage in behavior prohibited within the act; or termination is in the national security interests of the United States. The act also contains a sunset provision terminating any sanctions imposed under the act 5 years after the date of its enactment — November 27, 2024.
State-Controlled Media Concerns
Congress condemns the deliberate targeting and harassment of democratic activists, diplomatic personnel, and their families by media organizations controlled by the Chinese government. The Secretary of State is instructed to inform the Chinese government that the use of media outlets to spread disinformation and threaten its perceived enemies in Hong Kong is unacceptable, and to take into account any of the aforementioned activities when granting visas for travel and work in the United Statesto journalists associated with Chinese state-controlled media organizations.
Reconsideration of Export Controls
Congress directs the Department of Commerce in conjunction with other relevant Federal departments and agencies to consider adjustments to U.S. export controls with respect to Hong Kong to prevent the supply of crowd control and surveillance equipment.
Significance of the U.S. Legislative Response
Amidst the current trade war, any act by the United States challenging Chinese policy is sure to escalate hostilities to a degree. However, the Hong Kong Human Rights and Democracy Act seems to allow the United States to wag a finger without drawing too much ire from Beijing. With regard to the Annual State Report, the likelihood of the Secretary of State issuing a certification recommending that Hong Kong’s special status be revoked is minuscule, and even under circumstances warranting such a determination the Secretary would have good cause to use the waiver provision provided for by Congress in the interest of national security interests. A similar waiver provision is available to the President with regard to the imposition of sanctions, given the flexibility afforded, this too seems largely symbolic. The Commerce Report, the Rendition Protection Provision, and the Congressional censures each seem to have little external effect as a practical matter. The Act’s most mild provision, the Special Visa Treatment, will likely be the source of the Act’s largest real-world impact. All things considered, the Hong Kong Human Rights and Democracy Act seems to be a measured response allowing the United States to signal disapproval to Beijing and the International community without risking real reprisal from China.
Daniel Spicehandler is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Binghamton University in 2017.
