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HK National Security Law is a violation of international agreement responsibilities (Benny Tai Yiu-Ting)

蘋果日報 2020/06/02 13:42


U.S. President Donald Trump accused the CCP for unilaterally imposing national security control on Hong Kong, which openly violated Beijing’s obligations as stated in the Sino-British Joint Declaration. Trump’s statement was echoed by a joint statement issued by the U.S., U.K., Canada and Australia, which emphasised that CCP’s action is a direct clash to the principles of the Sino-British Joint Declaration. It is said that the Hong Kong national security law will destroy the framework of the principle of “one country, two systems”. It is worrying as large scale political prosecutions are now possible in Hong Kong, as the fundamental rights granted to Hong Kong people by the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights will be infringed.
According to the West, the Hong Kong national security law and the whole Hong Kong issue have elevated into an issue related to fulfilling responsibilities of international agreements. This transition is crucial. Because it’s no longer an argument of stipulation from the Basic Law. No matter how much power the China’s National People’s Congress (NPC) or it’s Standing Committee (NPCSC) may get from the Constitution of the PRC or the Basic Law, and no matter how the CCP twisted the Basic Law to meet their needs, they failed to raise the legitimacy of the Hong Kong national security law. And what the international community is more concerned about is indeed at a different level.
The right of the CCP’s sovereignty in Hong Kong was granted by the Joint Declaration, which is normative under international law and cannot be freely interpreted by the CCP according to its will. As the agreement was registered in the United Nations, it should be interpreted and carried out under the principles endorsed by the international community. If the basic principles of the declaration are violated, all decisions and actions taken by the CCP under the Chinese constitution or the Basic Law will be out of legality and legitimacy. And it will touch the bottom line of basic human beliefs and principles developed and evolved over the centuries.
If the NPCSC bypasses Article 23 of the Basic Law to enact the legislation directly, it will contradict with Hong Kong’s existing law, which is granted by the Joint Declaration. The Annex I of the declaration stated that: “The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. […] The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.” When actions and activities are banned by Hong Kong’s national security law, the rights protected by these covenants will likely be eroded. In conclusion, Hong Kong’ version of national security law is in direct conflict with what the CCP promised in the Joint Declaration.
As the Hong Kong issue became an international issue, all countries can oppose, or even impose sanctions on the CCP, as long as international law doctrines are endorsed by these countries.
Counter-action should still be legitimate, in order to attract more countries to join in. If the CCP failed to perform their duties and obligations, their rights given by the declaration shall not be recognised by the international community anymore. And it will directly affect Hong Kong’s international political status and prospects.
As the Hong Kong issue is now related to duties and obligations of international agreement, the CCP can no longer use reasons such as ‘the legality of domestic law’ or ‘internal affairs’ to respond to the doubts of the West and the international community. This change raised the level of legitimacy, to one being internationally recognised, for Hongkongers to continue to fight for freedom and democracy. It is still hard to estimate how it would go, nevertheless, Hong Kong has certainly reached an international stage that she has never been before.
In the short run, the Hong Kong national security law will bring huge impacts to local political, economic and social aspects. However, it is paradoxical that such actions of the CCP indeed enhanced Hong Kong’s international status. Therefore in the long run, it may lead Hong Kong to a future that we could yet imagine.
(Benny Tai Yiu-Ting is a Hong Kong legal scholar and democracy activist.)
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