Fight or Flight? Hong Kongers Debate Whether to Leave for the UK

By Jerome A. Cohen

Here is an important and largely encouraging story. A Perfect Storm is brewing in both Hong Kong and the UK over emigration to the UK, and it has major lessons for all other liberal democracies that are, rightly, concerned about Beijing’s oppression and the plight of Hong Kong people. 

This is Boris Johnson’s finest hour, and I hope that he and his Cabinet can follow through on not only welcoming people who wish to flee PRC dictatorship but also working hard to resolve the many challenges these newcomers face in a UK beset by the pandemic and its long-existing economic and sociological problems in dealing with racial minorities.

The US should immediately follow suit, as should the other obvious preferred destinations of self-exiling Hong Kongers. Here is a huge potential role not just for governments but for charitable foundations like Ford and Rockefeller and the newer ones spawned by immense wealth in America and elsewhere.

Here is also a great opportunity for the many foreign observers of the tragedies being inflicted by Xi Jinping who feel frustrated by their apparent inability to respond in opposition. We can reach out in our own communities to facilitate the arrival and assimilation of the newcomers. This will also belatedly sensitize us to the need to reach out to immigrants from other countries who have done so much to contribute to our domestic welfare.

Perhaps the most encouraging recent report from the UK is the one that demonstrates the net economic and talent benefits that Hong Kong arrivals will contribute to Britain’s struggling economy.

What should the UK do in response to China’s distortion of the Sino-British Joint Declaration on Hong Kong?

By Jerome A. Cohen

Here’s a strong piece from Chris Patten in the Financial Times. It supports some of the suggestions that have been presented in the past few days and mentions the forthcoming G-7 meeting.

But I am disappointed that Chris does not spell out what the G-7, which I mentioned the other day in my blog, should actually do. In response to my blog, a brilliant European scholar has asked whether the G-7 might invite Taiwan to attend as an observer. Too provocative to Beijing? Too dangerous for Taiwan? After the unfair exclusion of Taiwan from the recent World Health Assembly (WHA), observer status at the G-7 would be a nice touch. Even if G-7 does not customarily invite observers, it surely can, and such an innovation would add emphasis to the importance of the invitation. 

Moreover, Patten is in a good position to urge some dramatic diplomatic responses that the UK should independently make in view of the PRC’s newest distortion of the Sino-British Joint Declaration.

Even if a UK request for bilateral discussions with Beijing to correct its distortion of the treaty is scorned, even if a UK effort to take the issues of treaty interpretation to the International Court of Justice is certain to be rejected by the PRC, these measures should be visibly attempted in order to focus world attention on what is happening.

My take on Beijing’s draft Decision on Hong Kong’s national security legislation

By Jerome A. Cohen

1. What may be driving Beijing’s draft Decision?

For the past five years, perhaps because I focus on Beijing’s domestic repression, I have inevitably accentuated the negative in appraising assessments of the PRC’s rising power. The other day I wrote that the Party’s new NPC action to authorize operation of its secret police in Hong Kong is an act of desperation. But I would not characterize it as foolhardy, as have some.

The situation in Hong Kong, from Beijing’s viewpoint, was steadily getting worse, despite the pause in protests occasioned by Covid-19. If allowed to fester without any attempt to suppress it, prospects for the autumn promised to see Hong Kong move further out of PRC control. Unless something was done, democratic politicians were likely to win the September Leg Co election. Measures taken to suspend or postpone the election or to again prevent popular candidates from seeking election or taking office would be sure to inspire huge crowds to reenter the streets if, as appears likely, the virus no longer inhibits public protests by then. Even if pro-Beijing politicians won the election and continued to control Leg Co, they could not be counted on to enact Article 23 legislation, as long experience has demonstrated. Bold central action now, while fear of the virus keeps people at home, might well be the least unfavorable option open to the leadership.

What Beijing has done is to reverse last summer’s humiliating defeat over its failure to have Hong Kong enact extradition/rendition measures that would have transferred some people in Hong Kong to the Mainland’s system of arbitrary detention and criminal injustice. It has done so by taking the Mainland’s system of arbitrary detention and criminal injustice to all of Hong Kong! Article 4 of the draft NPC Decision promises the establishment in Hong Kong by “relevant national security organs” of “agencies” that will improve “enforcement mechanisms” to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. The “final solution”, to invoke a sinister Hitlerian term, is the acceleration of Hong Kong’s transformation into “another Chinese city” long before 2047. This is already proving to be a costly gamble for Beijing, but nothing ventured, nothing gained!

2.  What do we know about the process regarding the draft Decision?

Some interesting relevant tidbits have emerged in recent hours. Apparently the law or laws that the Standing Committee is responsible for drafting in accordance with the not yet approved Decision are well under way.

But has the Basic Law Committee that was established to advise the Standing Committee already been consulted about the text? Prof. Albert Chen of Hong Kong University Law School, a brilliant scholar who has been a member of the Basic Law Committee since its inception, has been quoted in the press as predicting that the anticipated legislation will have broader scope than Article 23 and has appropriately cautioned against the danger that the text may easily be expanded to suppress “political opponents, dissidents, media, educators, intellectuals and so on”. The draft Decision reportedly came as a surprise to him, and I have seen no indication that the Basic Law Committee has yet been convened.

Various pro-Beijing Hong Kong political figures have recently spoken out with ostensible knowledge of the contemplated legislation, but with widely varying predictions of what offenses it will cover. Yet, like the Politburo leader responsible for Hong Kong affairs, they offer assurances that the contemplated legislation will be surgically applied to affect only its supposedly circumscribed targets, allegedly only a small group.

3.  What are the legal and human rights implications?

Here’s an excellent analysis from the NPC Observer of the Draft NPC Decision on Hong Kong. It highlights the serious legal challenges that the draft Decision presents to a conventional interpretation of the Basic Law and also the anticipated rationalizations for overcoming them, at least to the satisfaction of pro-Beijing advocates. In the end, it concludes, as I did in a brief earlier blog, that, given the structure of the PRC constitutional/legal system and the provisions of the Basic Law, the NPC Standing Committee has the power to say that the law is whatever it wishes it to be. So much for the protections supposedly guaranteed by PRC domestic law, including its reign over Hong Kong!

This does not relieve the central government and the Party of charges that the Decision and the legislation will violate the PRC’s obligations under the 1984 UK-PRC Joint Declaration on Hong Kong, including its pledge that Hong Kong will continue to be protected by the International Covenant on Civil and Political Rights (ICCPR) until the Joint Declaration expires in 2047. Nor does it free Beijing from charges that the Decision and legislation may result in violations of the PRC’s broader international human rights obligations.

Apparently to provide assurance that the agents of the Ministry of National Security and the Ministry of Public Security who will now be authorized to openly operate in Hong Kong will not run amok and usurp the role of the Hong Kong police, it has been suggested that the Hong Kong government may revive the Special Branch unit of the local police that was abolished before the 1997 Handover by the UK to the PRC. The vague language of the draft Decision foreshadows this.

Knowledgeable observers will take such assurances for what they are worth.

4.  What is to be done?

What is to be done in response to Beijing’s sudden mortal wound to Hong Kong’s promised “high degree of autonomy”? People should read this excellent statement by Human Rights in China and its very able executive director, my NYU Law School colleague Professor Sharon Hom. It provides the best answer to date. This should stimulate further creative thinking. For example, an effort could be made to cancel or at least postpone the 2020 Olympics in China.

Saturday’s Washington Post editorial suggests that selective resort to certain U.S. sanctions made available by existing American legislation would seem desirable and that the sanctions that would be authorized by a new proposal to be considered by the Senate would add to the possibilities without invoking the nuclear option of entirely eliminating Hong Kong’s special trade and investment status. As the Magnitsky Act experience shows, however, such sanctions are never invoked against the one PRC official we all know should be the target — the great dictator.

But political and diplomatic measures can be taken at the G-7 and other major forums. Despite the PRC’s veto in the Security Council, even U.N. meetings and those of other international institutions can become occasions for multilateral, not merely unilateral, denunciations. 

Surely, Hong Kong’s protection under the ICCPR should be brought into play. But all this requires effective allied cooperation and, above all, vigorous activism on the part of the UK, which is the treaty partner whose expectations are being violated by the PRC.  

Has Simon Cheng been forgotten? Does he want to be?

By Jerome A. Cohen

Cheng returned home from Shenzhen to Hong Kong Saturday afternoon, apparently by car. The only reports I have since seen noted an understandable request from his family for a period of repose before being subjected to media interviews or other enlightenment of the public about the mysteries surrounding his detention and punishment for allegedly consorting with a prostitute. Has anyone had any subsequent news about the case? Has Cheng emerged? Returned to work at the UK Consulate? Told friends about his ordeal?

Has the media made attempts to interview him or otherwise obtain an explanation of one of the more unusual recent cases of PRC justice? How long can journalists and the public, at home and abroad, be expected to wait? HK must be a far more polite and thoughtful media environment than other cities of comparable size. Will the UK Consulate General issue an explanation? The Hong Kong Government? Cheng’s lawyers? Family or girlfriend?

Is there some widely-shared community expectation that we should forget about this important and curious incident that might tell us a great deal about PRC justice? Should we all act like it never happened? Can anyone recall similar situations? Do people only care about the extent of violent protests in Hong Kong and the US-China economic war? 

I understand the UK Government’s concerns, which is why I did not expect a statement from it, but that is only a part of the overall picture. What inference should the public draw from the eerie silence?

Do Hong Kong people just believe whatever they normally do about such incidents, with PRC sympathizers putting their faith in the China Daily and democrats passing the case off as another instance of phony Communist charges?

And what should the rest of us infer from the strange circumstances? Should we assume that Cheng’s silence means he was indeed guilty of colossal misjudgment -  from several perspectives? Should we assume that he is innocent but willing to accept scandalous defamation and to fall on his sword to avoid further damage to Sino-British relations and HK’s incendiary plight?

And what should we infer from the apparent passivity or lack of interest of the media? Are the London tabloids content with once again raking the Duke of York over the coals? Summer doldrums? Compassion fatigue? Overwork?

Is my impatience unique?