Hong Kong, China and the United States: A Major International Issue

By Jerome A. Cohen

As widely expected, Hong Kong Chief Executive Carrie Lam’s very late withdrawal of the notorious extradition bill has had no pacifying effect. Perhaps it has even exacerbated the situation by demonstrating how reluctant the Hong Kong government and the Central Government are to make any reasonable concession to local public opinion. They are still relying on the attrition strategy that eventually ended the 2014 Umbrella Movement. They hope that even the most dedicated protesters will eventually wilt from exhaustion and despair.

Events in Hong Kong may someday add to the internal pressures for improving the Mainland system of criminal justice in practice as well as law but any significant changes will have to await a radical shift in the policies of the Chinese Communist Party, and that shift seems far from today’s horizon.

The currently contemplated Hong Kong Human Rights and Democracy Act in the United States is immediately of symbolic importance but will also add to American leverage over Beijing in practical terms because of its threat to eliminate Hong Kong’s special status under American law. The so called “nuclear option” it authorizes would significantly add to Hong Kong’s protection against the PRC’s use of military force to govern Hong Kong, but, as the “nuclear” name suggests, actual resort to this deterrent would substantially harm Hong Kong economically in order to “save” it politically.

It reminds me of the annual Congressional Most Favored Nation (MFN) review of China’s human rights actions that took place in the 1990s before Congress agreed to approve PRC entry into the WTO. Many in America regret the U.S. surrender of that option to withdraw the MFN access to the U.S. market of a China whose exports required it. The annual threat to deny the PRC this MFN treatment was one of the few tools the U.S. Government had to effectively express its support for human rights in China. While not as profound in its impact on China as the withdrawal of MFN might have been, the proposed Hong Kong Human Rights and Democracy Act would nevertheless  threaten to inflict serious damage on the PRC’s national economy as well as on Hong Kong by ending Hong Kong’s special customs status.

Hong Kong is surely not a matter of China’s exclusive domestic concern, as the PRC claims, but obviously a matter of great and legitimate international importance for many reasons. Not the least is the applicability of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong and the PRC’s obligations under various human rights treaties it has ratified, including the Convention against Torture and the International Covenant on Economic Social and Cultural Rights.

Hong Kong’s protesters are today’s greatest challenge to PRC efforts to persuade the world of its “soft power.” The outrageous suppressions of freedom, human rights and the rule of law throughout the Mainland and even the increasingly well-known repression in China’s Xinjiang as well as Tibet have not had as big an impact on world opinion as present events in Hong Kong. It is time for the PRC to recognize this, and it is time for President Trump to consistently communicate this to Beijing in public as well as in private.

Some proposals for resolving the government crisis in Hong Kong

By Jerome A. Cohen

Given the way things have now turned in Hong Kong, there will be no need for PRC intervention via the People’s Liberation Army and People’s Armed Police so long as momentum will develop toward an apparent improvement in the situation.

If the Hong Kong Government comes forth with a plausible platform for independently reviewing allegations of police misconduct, that will be a start. It could be accompanied by or followed by withdrawal of the extradition proposal and the retirement of Carrie Lam. If the courts begin to exercise more leniency in evaluating and sentencing cases brought before them, soon reversing the conviction or reducing the sentences of Benny Tai and others, for example, and if the Secretary for Justice becomes less zealous in pursuing new cases, that will help.

Further peaceful and massive demonstrations will be desirable to keep the pressure on. But still necessary, besides the newly-formed Neutral Legal Observers Group, will be establishment of an independent Citizens Reconciliation Group or similar institution to move the process forward to achieve the positive reforms required.

Of course, we cannot naively expect the Hong Kong Government not to investigate, identify and perhaps informally seek to intimidate and even punish people it labels organizers. That would be a setback, if not a disaster. And Beijing’s barrage of fake news is surely likely to continue.

Police use of force in Hong Kong protests and Carrie Lam's responsibility

By Jerome A. Cohen

This remarkable essay by Neville Sarony is the best I have seen on the use of force in dealing with protesters. I almost skipped reading it because of its title, assuming it would be a one-sided, understandably outraged attack on Mrs. Lam. Instead it turned out to be a judicious, balanced disquisition rooted not only in theory but also in practice and personal experience.

It also is a definitive verdict on Mrs. Lam’s future. She must now accept responsibility for the whole mess and for many specific ugly actions, even preceding Wednesday’s climactic events.

Indeed, we have new insights into the origins of the Hong Kong extradition bill from yesterday’s New York Times. Keith Bradsher’s front page story reports on the introduction of the bill, just before the Chinese New Year holiday, to the Executive Council prior to its subsequent introduction to the Legislative Council after the holiday. ExCo quickly approved the bill “with virtually no discussion”. And the top finance officials and leading financiers at the meeting were not alerted to provisions of the bill for “mutual legal assistance in criminal matters” that would permit the police to freeze the assets of companies and people in Hong Kong at the request of Mainland security agencies!

These officials and business leaders were reportedly “appalled” when they later learned what they had approved! This information adds to what has been well-known about the abbreviated procedures to which Mrs. Lam resorted in seeking to gain LegCo’s approval. Was this “good faith” political leadership in the interest of Hong Kong’s people or even its local and foreign business community?