Standing, Not-Standing with the Protesters: U.S. Policy on Hong Kong and BLM

The world watches as the authoritarian tendencies of the global power’s leader descend into an ever-worsening cycle of chaos and repression. Longstanding refusals to deal with police brutality, among many other festering issues, has led to massive urban street demonstrations. Those demonstrations have been met not with reform, but instead with tough talk about law and order, outside agitators, and the deployment of national security apparatus. Street violence breaks out. National officials pressure local authorities to get tougher still and raise the prospect of bringing in the military if they don’t. Meantime, this same leader and his supporters excoriate the head of the nation’s leading foreign rival for not addressing protestor demands, excusing police brutality, and threatening the use of the military.

Xi Jinping or Donald Trump? Hong Kong or Washington, DC?

The all too plausible answer is all of the above. Which is why the Trump administration’s escalating attacks on the rule of law at home are crippling U.S. attempts to defend the rule of law abroad. Castigating other countries for human rights violations while committing nearly the same transgressions neuters those condemnations as obvious hypocrisy. That story is at least as old as the United States supporting United Nations mandated standards of racial equality while Jim Crow still thrived. Yet, in certain circumstances, the effects of such inconsistency can be more pernicious. In certain cases, an aggressive embrace of double standards doesn’t just undermine human rights advocacy. It supports the additional charge such advocacy is merely an unprincipled attempt to assert power.

Nowhere is this dynamic more fraught or consequential than in Hong Kong. For some time, the world has watched the mobilized population of the former British colony fight against increasingly severe assaults on basic rights and freedoms that its residents had previously enjoyed. Ironically, the Trump Administration’s willingness to “stand up” to China in other areas might have been a source of effective support. If anything, support for human rights in Hong Kong, as well as mainland China, commands even greater support from Trump’s supporters in the GOP. Such conservative Republicans as Marco Rubio, Tom Cotton, and Mitch McConnell (no less), have been especially vocal. In an almost unique example of bipartisanship, they have joined with traditional Democratic human rights advocates such as Nancy Pelosi, to enact the Hong Kong Human Rights Act (as well as its companion, the Uyghur Human Rights Policy Act.) These efforts were already undercut by such policies as mass incarcerations at our southern border. But current events may have made attempts to assist Hong Kong dead on arrival.

First, some background. The United Kingdom returned Hong Kong to the People’s Republic of China (PRC) in 1997. Under the terms of the 1985 Sino-British Joint Declaration, a binding international agreement, the PRC was to guarantee Hong Kong a “high degree of autonomy” for fifty years. In particular, Hong Kong was to continue to enjoy its free market economy and common law legal framework. To implement these guarantees, the PRC’s National People’s Congress (NPC) promulgated the Hong Kong Basic Law, which roughly resembles a U.S. state constitution. This “mini-constitution,” among other things, establishes an independent judiciary, a partially representative local legislature, and a chief executive who is effectively hand-picked by Beijing. It also guarantees Hong Kong’s authority over its internal affairs, and further incorporates the rights set out in the International Covenant on Civil and Political Rights (ICCPR).

For the most part, this “One Country, Two Systems” model worked for nearly two decades. Business boomed, especially as the PRC liberalized its own economy. A free, though sometimes self-censored, press flourished. Demonstrations unthinkable in the PRC were commonplace in Hong Kong, not least the annual commemoration of the June 4 Tiananmen Square massacre, which drew tens of thousands to Victoria Park.

Controversies did arise. Foreshadowing the present crisis, the local government’s attempt in 2003 to enact national security legislation under Article 23 of the Basic Law prompted Hong Kong’s first massive — and peaceful — protests. The proposal was withdrawn. Likewise, Beijing’s failure to make good on its promise to make the Chief Executive elected through universal suffrage sparked increasing unrest. By 2014 this issue prompted a new round of street protests that came to be known as the “Umbrella Movement,” so named for the way demonstrators protected themselves from police tear gas.

By this time Xi Jinping had already emerged as the mainland’s new leader. Since 2012, the PRC’s authoritarian turn under Xi accelerated, featuring such human rights catastrophes as the incarceration of over one million Muslim Uyghurs in Xinjiang. In time, this tightening would affect “One Country, Two Systems.” Fatefully, in 2019 the local government introduced a bill that would permit extradition to the mainland. For months, as many as two million protestors took to the streets; this in a city of over seven million. These demonstrations too were mainly peaceful, but they were marred by violence on the part of some protestors as well as shocking videos of excesses by Hong Kong’s now heavily armored police. Eventually, the local government withdrew that bill too. Yet numerous related grievances had arisen, including the resignation of Hong Kong Chief Executive Carrie Lam, further democratization, and an independent investigation into allegations of widespread police brutality, charges supported by numerous recordings on social media.

The COVID-19 pandemic brought a temporary lull to the unrest. Then, just weeks ago, came several shocking developments. First, local authorities arrested 15 prominent pro-democracy figures for participating in a peaceful yet unauthorized demonstration months earlier. These arrests significantly included older and more moderate leaders such as Martin Lee, Margaret Ng, and Jimmy Lai. Next, local offices of PRC agencies began commenting on local developments, in apparent violation of Article 22 of the Basic Law. Finally, the NPC itself authorized the drafting of a national security bill directly for Hong Kong, bypassing the process envisioned in Article 23 of the Basic Law. As demonstrations again broke out, a local People’s Liberation Army garrison commander intimated that his troops were at the ready to maintain law and order. Anticipating these developments, Hong Kong’s last colonial governor, the progressive Lord Chris Patten, had earlier remarked that when the snow starts melting, it melts quickly.

Governments, NGOs, and academics have all rightly condemned these recent actions as violating both domestic and international law. Above all, they have correctly expressed concern that any national security law drafted in Beijing will threaten ICCPR rights currently guaranteed by the Basic Law and Hong Kong’s courts. Among threatened ICCPR provisions incorporated in the Basic Law include: core rights to speech, assembly, and demonstration (Article 27), prohibitions against arbitrary or unlawful arrest, detention, or imprisonment (Article 28), search (Article 29), privacy of communication (Article 30), freedom of movement (Article 31), and rights to confidential legal advice and access to the courts (Article 35). Critics also note any such law would be made without proper authority. Article 23 of the Basic Law provides that Hong Kong “shall enact laws on its own to prohibit any act of treason, secession, sedition, [or] subversion against the Central People’s Government.” Many commentators, myself included, believe that Article 23 precludes the PRC from enacting a national security law via Basic Law procedures, as it is planning to do now. The international community has also expressed concern about official statements that the NPC may also do an end run around Hong Kong’s judiciary entirely and set up a separate “national security court,” relying on the fact that the Basic Law itself is NPC law.

Trump’s own response, initially mixed, has settled into a stance of belligerent vagueness. Late last year he was still referring to Xi as his “good friend” when asked about Hong Kong. Subsequent events, augmented perhaps by China’s usefulness as an election year target, have brought about a shift for now. Last week, Trump announced that Hong Kong could no longer be considered separate from mainland China and, among other things, was considering subjecting the city to the same high tariffs that his trade war had set for the PRC.

Far from defensive, the PRC response has been almost gleeful. Its defenders have been quick to grab the low-hanging fruit of hypocrisy. Hua Chunying, a spokesperson for the PRC’s foreign ministry, tweeted “I can’t breathe,” together with a U.S. State Department statement on Hong Kong. A recent column in China Daily, an English language media mouthpiece for the Chinese Communist Party, happily quoted Senator Tom Cotton calling for the 101 Airborne to “face off” with “Antifa terrorists” currently on U.S. streets, juxtaposed against his earlier condemnation of “police violence in Hong Kong.” And that was before the Arkansas Senator’s subsequent New York Times op-ed urging Trump to “Send in the Troops,” to stop protests, astonishingly published on the June 4 anniversary of the People’s Liberation Army slaughtering civilian demonstrators in and around Tiananmen Square.

More importantly, such hypocrisy arguably makes matters worse by feeding into the PRC’s ongoing narrative that the protests in Hong Kong result from foreign agitators. As the same China Daily column proclaims, the contradictory stance of Republican politicians from Trump on down “deliberately seek to mask American geopolitical interests and opportunism.”

Of course, the PRC’s own hypocrisy is no reason to abandon Hong Kong. But if the U.S. government seeks to play a constructive role, it needs to check off certain items. First and foremost, the U.S. needs to be seen to be at least attempting to address human rights concerns at home. Second, there must be coordination with like-minded allies. Third, extreme care must be taken by the U.S. government to be perceived, as far as is possible, to be acting out of a commitment to international standards rather than national self-interest. None of this can happen so long as systemic police brutality, racial inequality, and threats of domestic military intervention persist without any meaningful commitment to address the root problems underlying ongoing protests.

For the people of Hong Kong and Washington, it looks to be a long, hot summer.

Images – LEFT: People gesture the popular protest slogan ‘Five demands, not one less’ as they attend a vigil in Victoria Park in Hong Kong on June 4, 2020, after the annual remembrance that traditionally takes place in the park to mark the 1989 Tiananmen Square crackdown was banned on public health grounds because of the COVID-19 coronavirus pandemic. – Tens of thousands of people across Hong Kong lit candles and chanted democracy slogans on June 4 to commemorate China’s deadly Tiananmen crackdown, defying a ban against gathering as tensions seethed over a planned new security law. (Photo by Yan ZHAO / AFP) (Photo by YAN ZHAO/AFP via Getty Images). RIGHT: Demonstrators gather to protest the death of George Floyd at the hub the retail and restaurant heart of the South Bronx on June 4, 2020 in the Bronx borough of New York City. Widespread protests continue around the country and other parts of the world over the death of George Floyd while in Minneapolis, Minnesota police custody on May 25. (Photo by David Dee Delgado/Getty Images)

 

About the Author(s)

Martin S. Flaherty

Martin S. Flaherty teaches at Princeton and Fordham Law School and is the author of "Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs." Follow him on Twitter (@MFlaherty17).