By Sarah Cook
There are many unprecedented and appalling dimensions to the new National Security Law that Beijing has imposed on Hong Kong. In one stroke, China’s unelected leadership stripped away the freedoms and legal protections that have long set the city apart from the mainland. Among the law’s most startling provisions is Article 38, which effectively applies criminal penalties for vague political offenses to anyone, anywhere in the world, regardless of whether they have a substantial connection to Hong Kong. As legal experts have noted, this extraterritoriality makes the measure even more expansive than the mainland’s own National Security Law.
But Article 38 — with all its implications — is only one of several steps that Chinese authorities have taken over the past month to assert control over views expressed abroad and to intimidate both foreign and Chinese citizens overseas. Taken together, these moves are forcing people around the world to reassess travel itineraries, business models, and communication methods. While some policymakers, foreign leaders, and civil society groups have been outspoken in their criticism of Beijing’s actions, they may ultimately be the outliers in a new global wave of self-censorship.
Overseas Students and Critics in Beijing’s Crosshairs
Among those immediately affected by the new National Security Law are the many thousands of Hong Kong students currently overseas who have publicly supported the territory’s pro-democracy protesters on foreign university campuses and social media. There is also a small contingent of mainland Chinese students at foreign universities who have expressed support for the democratic aspirations and rights of Hong Kongers, including in interviews with international media.
It is not clear whether Article 38 will be applied retroactively, punishing speech from before the law took effect. But given how far the Chinese and Hong Kong governments have already drifted from international norms on the rule of law, many of these young people may be reluctant to gamble with their freedom, education, and future by returning home under such circumstances. Even if past activism is exempt, students who wish or need to return home will have to keep their views to themselves going forward in order to avoid harsh penalties. In November 2019, a student from the University of Minnesota was sentenced to six months in prison in China over a series of tweets with unflattering references to Chinese President Xi Jinping. By contrast, the Hong Kong law carries a maximum sentence of life in prison.
Students are hardly the only ones at risk. Article 38 exposes a much wider array of individuals — including this author — to detention and prosecution should they travel to Hong Kong, mainland China, or any country where the rule of law is weak and the government is eager to curry favor with Beijing. As Donald Clarke, a law professor at George Washington University, notes in a detailed analysis of the provision and its potential applications, “I don’t recommend Thailand if you’re in the PRC government’s sights.”
Citizenship Renunciations and Foreign Hostages
The dangers that foreign citizens could now face are illustrated by a series of recent cases from the mainland. On June 30, a court in Beijing sentenced Canadian citizen and businesswoman Sun Qian to eight years in prison for practicing Falun Gong, the meditation and spiritual discipline banned in China but practiced freely in Canada and elsewhere around the world. Sun had been in custody for more than three years already. The harsh sentence itself is unfortunately not unusual for Falun Gong adherents in China, but another aspect of the case stands out: Sun was apparently coerced into renouncing her Canadian citizenship, with relatives and a former lawyer reporting that she suffered torture in custody.
This may be part of an emerging trend. In February, Gui Minhai, a Hong Kong bookseller who was abducted from Thailand in 2015 to face politically motivated charges in China, reportedly renounced his Swedish citizenship just as he was sentenced to 10 years in prison. Yang Hengjun, an Australian citizen and writer who was charged with espionage after being detained at a Chinese airport in January 2019, could be the next to receive such treatment.
All three of these detainees were born in China, allowing Chinese authorities to claim that they renounced the legal protection of their adopted countries and accepted the justice of their “motherland.” But Beijing has not hesitated to seize foreigners with no Chinese origins in order to achieve its political or diplomatic goals. On June 15, Chinese prosecutors announced that the espionage cases against two native-born Canadians — former diplomat Michael Kovrig and businessman Michael Spavor — would soon proceed, meaning the defendants could face life in prison. The two have been held since December 2018 in what is widely seen as retaliation for Canada’s arrest of Huawei chief financial officer Meng Wanzhou for potential extradition to the United States, where the telecommunications executive stands accused of stealing trade secrets, obstructing a criminal investigation, and violating sanctions against Iran. In other words, Kovrig and Spavor are believed to be victims of Beijing’s “hostage diplomacy,” which the National Security Law could now facilitate in the previously safe haven of Hong Kong.
Redlines Without Borders
For many years now, the Chinese Communist Party has wielded its control over access to the mainland as a cudgel to enforce self-censorship among the Chinese diaspora, journalists, academics, politicians, international corporations, and even Hollywood film studios. The events of the past month have dramatically escalated the threats emanating from Beijing. In one fell swoop, the Chinese leadership has demonstrated a willingness and ability to upend the established rules of permissible speech and activity in a matter of days; abruptly absorbed a major Asian hub for international finance, media, and activism into its repressive jurisdiction; and added support for human rights in Hong Kong to an already long list of strictly taboo topics.
While much has been written about the new law’s inevitable chilling effect within Hong Kong, its impact abroad should not be underestimated.
After news of the law and of Sun Qian’s supposed citizenship renunciation emerged, Alvin Cheung, an outspoken Hong Kong–Canadian legal expert, wrote on Twitter that he was preparing an affidavit “declaring that I am a Canadian citizen and would never renounce Canadian citizenship or any claim to Canadian consular assistance of my own free will.” The governments of the United Kingdom, Australia, and Canada are among those that have updated their travel advisories for Hong Kong, adding warnings such as, “You may be at increased risk of arbitrary detention on national security grounds and possible extradition to mainland China.” The U.S. State Department reportedly sent a warning to U.S. citizens in China, advising them to “Exercise increased caution in the People’s Republic of China (PRC) due to arbitrary enforcement of local laws for purposes other than maintaining law and order.”
A statement by the American Chamber of Commerce in Hong Kong published after adoption of the National Security Law is significantly more subdued than one published in May, when the pending legislation was first announced and the chamber warned of its potential damage. Meanwhile, technology firms with significant market share in Hong Kong are weighing whether to pull out or find ways to resist inevitable government demands to censor politically sensitive content and turn over user data.
This choice — whether to self-censor, withdraw, or resist — is also faced by countless other entities and individuals, including anyone planning to travel to China, Hong Kong, or a country with a pliant pro-Beijing government, or indeed anyone with relatives, employees, or associates in such locations whom they might put at risk through their own speech and actions.
The stakes of the choice are clearly highest for the people of Hong Kong themselves. But the fact that so many others around the world are confronting the same unpalatable options underscores the alarming reach of the Chinese Communist Party’s program of political and social control.
Hong Kong’s border with the mainland was once like a levee separating the unfree world from the free. After years of erosion, that barrier has now been decisively breached, and unless we all work together to hold the water back, we will all be less free as a result.
Sarah Cook is a senior research analyst for China, Hong Kong, and Taiwan at Freedom House and director of its China Media Bulletin.
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