In a joint communication to the Chinese government, seven United Nations independent human rights experts presented a legal assessment of the National Security Law for Hong Kong (NSL). They also detailed their numerous concerns that the law does not comply with the government’s international legal obligations, in particular, with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which applies to Hong Kong Special Administrative Region (HKSAR).
The joint communication outlines the legal framework of international human rights standards that remain in force in the HKSAR in accordance with the 1984 Sino-British Joint Declaration and the Basic Law of Hong Kong. It also references the relevant UN Security Council, General Assembly, and Human Rights Council resolutions to remind the Chinese government that any measures to combat terrorism (including the crimes of incitement of and support for terrorist acts) must comply with all of its existing current obligations under international law.
The experts highlight vague and overbroad substantive and procedural provisions and the lack of transparency and accountability of the central and HKSAR security entities created under the NSL. They recommend review and reconsideration of the law to ensure its compliance with China’s international human rights obligations with respect to Hong Kong.
“This comprehensive and rigorous legal analysis of the NSL comes at a moment of urgent need to address the vast gray areas created by the law,” said Sharon Hom, Executive Director Human Rights in China. “Unfortunately, instead of constructively engaging with the concerns and recommendations of independent experts, the central authorities have characterized the joint communication as interference in China’s domestic affairs.”
The impact of the NSL (effective June 30, 2020) can be clearly seen in the ongoing arrests, chilling of the media, censorship and self-censorship across diverse sectors of society, and threats to the peaceful exercise of rights. The joint communication serves as an authoritative lens through which the legal profession, policymakers, and the public can critically examine the ambiguities and conflicts in the law and a tool with which to address the alarming lack of transparency and accountability of the implementing bodies.
Key concerns and comments advanced by the UN experts include the following (emphases added).
The compatibility of the National Security Law with international human rights
- While recognizing the “welcome and positive” additions of articles 4 (protection of human rights and fundamental freedoms guaranteed under the Basic Law, ICCPR and ICESCR) and 5 (commitment to the rule of law), the experts express concern that “the content of the measures adopted in the National Security Law nonetheless poses a serious risk that these fundamental freedoms and due process protections may be infringed upon.”
- The experts are concerned about the “broad scope of the crimes defined as secession and subversion; the express curtailment of freedoms of expression, peaceful assembly, and association; the implications of the scope and substance of the security law as a whole on the rule of law; and the interference with the ability of civil society organisations to perform their lawful function.”
- The NSL provides for the application of the Criminal Procedure Law of the People’s Republic of China in certain cases (articles 55, 57). The experts underscore: “If the Criminal Procedure Law of the People’s Republic of China is applied to persons or groups from HKSAR for acts occurring in or related to HKSAR, that law would be necessarily required to be fully compliant with the ICCPR.” The experts further state that with regard to individuals charged with offenses under the NSL, “if criminal regulation of the Central government is to be applied under this legislation . . . every stage of process that follows (arrest, detention, charging, trial and sentencing) . . . must be ICCPR-compliant.”
- “[A]ny acts of cooperation between agencies of HKSAR and government agencies . . . would be subject to the requirements of the ICCPR in all respects and must also be fully ICCPR compliant in all aspects of cooperation.”
- A number of procedural provisions “may undermine compliance with ICCPR obligations including article 62 [the NSL prevails over local law] . . . and article 65 (which vests the power of interpretation of the law solely with the Standing Committee of the National People’s Congress) sidestepping independent judicial assessment of whether the law and action taken on the basis of it is ICCPR compliant.”
Definition of Terrorism
- The experts recognize that the definition of terrorist activities identified in the NSL are aligned with the relevant provisions of the key international counter-terrorism instruments but caution that “terrorist activities included in article 24 describing damage to physical property—such as sabotage of transport facilities or public services—risk criminalizing conduct that goes beyond the Security Council’s definition of terrorist conduct if the damage is not committed with the intent to cause death or serious bodily harm.”
- “The use of the National Security Law’s terrorism measures should be strictly limited to address conduct which is genuinely terrorist in nature and should not be used to restrict or limit protected fundamental freedoms, including the rights to opinion, expression, and of peaceful assembly.”
- The experts highlight the core principle of the interdependence of security and human rights: “Security and human rights are intertwined and not separate. Effective security demands the protection of rights in a holistic and integrated way.”
- “National security is not a term of art, nor does the use of this phrase as a legislative matter give absolute discretion to the State. . . . [T]he deployment of national security terminology to criminalize that which is protected under the ICCPR would be in breach of the treaty’s obligations.”
Secession and Subversion
- The experts are concerned that the terms subversion and secession appear to be used interchangeably, and that “this conflation may lead to the potential misuse of these legal categories against human rights defenders, journalists and civil society actors.” The experts are also “troubled that a range of legitimate activities expressly protected by the ICCPR will be redefined domestically as secession by this legislation.”
- “[C]ertain phrases including ‘undermining national unification,’ ‘altering by unlawful means’ and ‘surrendering … to a foreign country,’ are broad and imprecise and do not indicate precisely what kind of individual conduct would fall within their ambit” as required by the principle of legal certainty enshrined in article 15(1) of the ICCPR and article 11 of the UDHR.
- “[T]he use of the term ‘participation’ constitutes an inchoate offence, namely criminalizing activities that have not as yet been committed in contravention of article 15 of the ICCPR.”
Freedom of Opinion, Expression and Peaceful Assembly
- The experts are troubled by potential impermissible impingement on the rights to freedom of opinion, expression, and peaceful assembly as protected by the UDHR and ICCPR and cited the following examples:
- “articles 20 and 22 of the law which define organizing, planning committing or participating in secession or subversion, appear to criminalise speech acts, including political writing”;
- “article 27, which addresses advocacy of terrorism or incitement of terrorist activity, is also sufficiently wide so as to encompass freedoms of opinion and speech”; and
- “article 29, which sets out the crime of conspiracy with a foreign state, may also affect both assemblies and speech acts.”
- “The law . . . implicates both serious concerns of legality as well as undue limitations on freedom of opinion, expression and peaceful assembly. The application of such provisions runs the grave risk of being targeted at, inter alia, the legitimate activities of political opposition, critics, dissidents, legislators, civil society, human rights defenders, lawyers, students, bloggers, artists, and others.”
Establishment of Committee for Safeguarding National Security
- The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism “has stressed the importance of independent oversight of national security bodies” such as the national security entity—the Committee for Safeguarding National Security—established by article 12 of the NSL.
- “This necessity for independent oversight would appear to be particularly compelling with the establishment of a new department of national security in the Hong Kong Police Force (articles 16 & 17) and the creation of a specialised division of the Hong Kong Justice department (article 18). We note our collective and profound concerns that the legislation authorizes both police and prosecutors to be subject to an oath of secrecy, which appears per se incompatible with the obligations to respect and ensure human rights in national security contexts.”
- “We underscore that general assertions of conduct that threatens ‘national security’ without proper definitions and limitations may severely curtail civic space, the right to participate in public affairs, the rights of minorities and the work of human rights defenders and other civil society actors and their right to associate.”
- “Empowered civil society and its participation is essential to building secure societies and leaving no one behind. Conversely, restricting civil society undermines the security that builds healthy and vibrant societies.”
“In all, the expressed concerns are a strong and urgent reminder to the Chinese authorities of their international obligations with regard to Hong Kong—that these are existing and prevailing obligations protected under the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Hong Kong’s Basic Law and Bill of Rights Ordinance—not to mention article 4 of the NSL itself,” said Hom.
“After including respect for international human rights and the rule of law in the NSL, the central government and the HKSAR government now must ensure meaningful and effective implementation of these provisions,” Hom added. “The failure of political leadership to welcome the constructive input and offer of technical advice and assistance by international experts who are conscientiously carrying out their UN mandates will further erode the rapidly diminishing trust and confidence of the public.”
The 14-page communication was sent to the Chinese ambassador to the UN on September 1 and made public on September 4. It is signed by the seven UN special procedures listed below working on some of the most significant challenges to fundamental rights and freedoms as protected in relevant international human rights law:
Fionnuala Ní Aoláin
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Vice-Chair of the Working Group on Arbitrary Detention
Special Rapporteur on extrajudicial, summary or arbitrary executions
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Clement Nyaletsossi Voule
Special Rapporteur on the rights to freedom of peaceful assembly and of association
Special Rapporteur on the situation of human rights defenders
Fernand de Varennes
Special Rapporteur on minority issues