Published: 19 October 2021 Author: Stefan Talmon
On 28 May 2020, China’s National People’s Congress in Beijing approved the adoption of a national security law for the Hong Kong Special Administrative Region (HKSAR). The move came in response to sometimes violent mass demonstrations and pro-democracy protests that had racked the city for the past year. The new legislation was to ban any acts or activities that endangered China’s national security in Hong Kong, including separatism, subversion, terrorism, and collusion with foreign countries – charges often used in mainland China to prosecute dissidents and other political opponents. The National People’s Congress’ decision was criticised by pro-democracy activists in Hong Kong and several Western States, including Germany.
On 17 June 2020, Federal Foreign Minister Heiko Maas issued the following statement on Hong Kong together with his colleagues from the other G7 nations and the High Representative of the European Union:
“We […] underscore our grave concern regarding China’s decision to impose a national security law on Hong Kong.
China’s decision is not in conformity with the Hong Kong Basic Law and its international commitments under the principles of the legally binding, UN-registered Sino-British Joint Declaration. The proposed national security law would risk seriously undermining the ‘One Country, Two Systems’ principle and the territory’s high degree of autonomy. It would jeopardise the system which has allowed Hong Kong to flourish and made it a success over many years.
Open debate, consultation with stakeholders, and respect for protected rights and freedoms in Hong Kong are essential.
We are also extremely concerned that this action would curtail and threaten the fundamental rights and freedoms of all the population protected by the rule of law and the existence of an independent justice system.
We strongly urge the Government of China to re-consider this decision.”
However, these concerns did not cause China to change its plan. On 30 June 2020, the Standing Committee of the National People’s Congress passed the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). After consultations with local bodies, the Chief Executive of the HKSAR promulgated
the NSL for local application on the same day. This triggered an instant reaction from twenty-seven States, including Germany. In a cross-regional statement at the Human Rights Council in Geneva, these States declared:
“The Joint Declaration, a legally binding treaty, registered with the United Nations, sets out that Hong Kong is guaranteed a high degree of autonomy and rights and freedoms, including those of the person, of the press, of assembly, and of association and that the ICCPR and ICESCR shall remain in force. These rights are also guaranteed in the basic law for the Hong Kong Special Administrative Region.
Making such a law without the direct participation of Hong Kong’s people, legislature or judiciary of Hong Kong undermines ‘One Country, Two Systems’.”
The next day, Foreign Minister Maas told German broadcaster ZDF:
“The introduction of the controversial new national security law in Hong Kong will impact European relations with China. What is happening there is extremely worrying because we believe that Hong Kong’s autonomy is gradually being eroded. Ultimately, the relationship between China and the European Union will be affected.”
On 10 July 2020, the State Secretary at the Federal Foreign Office invited China’s ambassador to a meeting at the Federal Foreign Office to express Germany’s concern that the NSL seriously undermined Hong Kong’s extensive autonomy and negatively affected the independence of the judiciary and the rule of law. After the meeting, the Chinese embassy issued a statement which read as follows:
“Ambassador Wu stressed that non-interference in internal affairs and respect for sovereignty are anchored in the Charter of the United Nations as basic norms of international relations. Hong Kong is a special administrative region of China. Hong Kong’s affairs are a purely internal matter for China. We firmly reject any form of outside interference.”
The NSL became part of public debate and mainstream media reporting in Germany. During an interview with German TV broadcaster ZDF on 12 July 2020, Federal President Frank Walter Steinmeier was asked whether Germany should not cancel its extradition agreement with Hong Kong in response to China’s violation of international law. The President replied:
“[T]he violation of international law presents itself in two ways. On the one hand, it violates the so-called Basic Law that applies to Hong Kong and, secondly, it also violates the international agreements and promises made by China itself after 1984.”
Asked about possible consequences of the violation of international law, the President stated:
“There have been reactions. It does not happen too often that Germany, plus the entire European Union, plus all industrialized countries – the G7 – expresses its profound concern about developments there. What is important is that we now make it clear to China: this is not a state of current indignation. On the contrary, if the situation stays like this, there will be a lasting, negative change in the relations to the European, to the western States. This cannot be in China’s interest and that is why I still hope that Chinese will be able to change course.”
After a meeting of the European Union (EU) Foreign Affairs Council on 13 July 2020, Foreign Minister Maas once again emphasised that it was important to Germany that China “complies with its international obligations, that the principle of one-country-two-systems is upheld, and human rights are respected.”
With the debate on the NSL intensifying, calls for a termination of the extradition agreement with Hong Kong increased. Asked about the agreement, the spokesperson for the Federal Foreign Office stated in the regular government press conference on 13 July 2020:
“Our relationship with Hong Kong was always based on the fact that the judiciary there is independent.”
The cabinet spokesperson added:
“The high degree of autonomy that Hong Kong enjoys must not be undermined. We expect these rule of law principles, which result from the principle of ‘one country, two systems’, to be observed. The rule of law in Hong Kong must be respected. The peaceful exercise of civil rights by Hong Kong citizens within this scope must not be called into question.”
Despite growing public pressure, the Federal Government took no practical action in response to the NSL. On the contrary, Chancellor Angela Merkel openly dismissed calls for wider visa schemes for people from Hong Kong. This led U.S. Secretary of State, Michael Pompeo, to implicitly criticise Germany for failing to stand up for freedom in Hong Kong. In a hawkish speech on China on 13 July 2020, he stated:
“Indeed, we have a NATO ally of ours that hasn’t stood up in the way that it needs to with respect to Hong Kong because they fear Beijing will restrict access to China’s market. This is the kind of timidity that will lead to historic failure, and we can’t repeat it.”
China’s foreign minister, on the other hand, called on Germany not to yield to Washington’s pressure to take sides.
Germany continued to discuss the situation in Hong Kong with Chinese officials and to limit its action to “closely monitoring the practical application of the new security law”. After talks with his Chinese counterpart on 24 July 2020, it was reported that Foreign Minister Maas had stressed:
“It remains important to us that, in line with the obligations under international law which China has undertaken to uphold, Hong Kong’s autonomy and the freedoms guaranteed in the Basic Law, including freedom of expression, continue to be guaranteed.”
On the same day, the Council of the EU decided to endorse a coordinated package of measures in response to the NSL “to be carried out at EU and/or Member State level, as deemed appropriate, within their respective areas of competence,” in the fields of, inter alia, asylum, migration, visa and residence policy; exports of sensitive security equipment and technologies; and the operation of Member States’ extradition and other relevant agreements with Hong Kong. The purpose of the various measures was to “express political support for Hong Kong’s autonomy under the ‘One Country, Two Systems’ principles, and solidarity with the people of Hong Kong.”
On 28 July 2020, Germany took its first measures in response to the NSL. In a statement on the EU Council conclusions on Hong Kong, Foreign Minister Maas stated:
“These conclusions send a signal of solidarity with the people who fear that the ‘one country, two systems’ principle will be undermined and their freedoms curtailed. We expect China to respect its obligations under international law and to guarantee autonomy and the freedoms enshrined in the Basic Law. […]
[…] we will immediately cease exports of military equipment, and also of particularly sensitive dual use goods, to Hong Kong and treat the territory in the same way as the rest of the People’s Republic of China.”
After the government of the HKSAR had first banned 12 pro-democracy candidates from running in the legislative elections scheduled for 6 September and then postponed the elections by a year because of the coronavirus pandemic, Germany took additional measures. On 31 July 2020, Foreign Minister Maas issued a statement on the postponement of the elections which read:
“The decision by the Hong Kong Government to disqualify 12 opposition candidates and to postpone the elections to the Legislative Council represents a further infringement of the rights of Hong Kong’s citizens. This move comes after the detention of four activists by the newly established National Security Department, which fills us with concern.
In view of these latest developments, we have decided to suspend our extradition agreement with Hong Kong.
We have repeatedly made clear our expectation that China abide by its obligations under international law. This includes ensuring the rights and freedoms guaranteed by the Basic Law of Hong Kong. In particular, it includes the right to free and fair elections, which the people of Hong Kong must enjoy.”
The Chinese Embassy in Berlin responded to the Foreign Minister’s statement immediately in a press release issued on the same day which read in part:
“The Chinese Embassy in Germany expresses its strong indignation and firm opposition to the wrong remarks of German Foreign Minister Heiko Maas regarding Hong Kong affairs on July 31th [sic].
The Hong Kong SAR government’s decision to postpone the Legislative Council election due to the severe COVID-19 epidemic situation is a responsible move to protect the lives and health of Hong Kong residents. […]
The decision of the Returning Officers to invalidate certain nominations for the Legislative Council election has sufficient legal basis. This decision is strictly in line with the Basic Law, the National Security Law for Hong Kong SAR and the electoral laws of the SAR. Under the framework of “One Country, Two Systems”, candidates for the legislature of Hong Kong SAR must support the Basic Law wholeheartedly and pledge allegiance to Hong Kong SAR of the People’s Republic of China. The disqualified nominees have openly advocated ‘Hong Kong independence’ and ‘self-determination’, or begged for external sanctions on and interference in Hong Kong. Their notorious words and deeds have challenged the limits of the law. By standing for election, their aim has never been to serve Hong Kong SAR or to uphold ‘One Country, Two Systems’. These individuals should never be given seats in the legislature of Hong Kong SAR which bears significant constitutional responsibilities, and allowed to wantonly paralyze the SAR Government, subvert state power, undermine “One Country, Two Systems” and harm the prosperity and stability in Hong Kong.
Hong Kong affairs are China’s internal affairs. The German side’s erroneous remarks on Hong Kong and the suspension of the extradition treaty with Hong Kong are a serious breach of international law and basic norms governing international relations and gross violation of China’s internal affairs. We firmly oppose them and reserve the right to react further.”
On 2 August 2020, the Minster of State for Europe at the Federal Foreign Office explained the German measures against China as follows:
“When international obligations are disregarded, when fundamental freedoms and human rights are threatened, then this concerns us all. Beijing’s actions are changing the rules of the game and are having a tangible impact on our relations. The EU has now adopted a comprehensive package of measures as part of a common response. This includes further restrictions on exports of goods related to security, simplified entry and residence regulations for Hong Kong citizens and targeted support for civil society.
Moreover, after close consultation with the EU member states, Germany has decided to suspend its extradition agreement with Hong Kong. The message to Beijing is crystal-clear, namely there will be no “business as usual” as far as the EU is concerned. Hong Kong will also be the acid test for China’s credibility as a reliable international partner.”
By a note verbale, dated 3 August 2020, the Federal Government informed the government of the HKSAR that it was suspending with immediate effect the Agreement for the Surrender of Fugitive Offenders (SFO). The agreement had been signed on 26 May 2006 and entered into force on 11 April 2009. Hong Kong, for its part, suspended the implementation of the SFO agreement on 12 August 2020. Asked whether this was in reaction to Germany’s suspension of the agreement, the spokesperson for the Chinese Foreign Ministry stated:
“Germany unilaterally announced suspension of the agreement on the surrender of fugitive offenders with Hong Kong […]. Germany […] have politicized judicial cooperation, interfered in China’s internal affairs, and violated international law and basic norms governing international relations. The Chinese side firmly opposes such moves.
Under the framework of the agreement on the surrender of fugitive offenders, the HKSAR, with the Central Government’s assistance and mandate and in accordance with the Basic Law, has offered assistance to the German side […]. Germany […], by wrongfully politicizing judicial cooperation with Hong Kong, [has] damaged the foundation for such cooperation and deviated from its purpose of upholding justice and rule of law. Therefore, China has decided that the HKSAR will suspend the implementation of the SFO agreement between the HKSAR and Germany […].”
During talks with his Chinese counterpart on 1 September 2020, Foreign Minister Maas called for the withdrawal of the NSL, saying, “We want the principle of ‘One Country, Two Systems’ to be fully applied.” The Chinese Foreign Minister, on the other hand, emphasized that “mutual respect and non-interference in other countries’ internal affairs should be upheld in state-to-state exchanges, as this is the basic principles of international law and is set forth by the Charter of the United Nations. Under this premise, the Chinese side is willing to communicate with countries which are interested in the topics of common interest to enhance mutual understanding.”
In Germany, there were calls for further action in response to the NSL, including the cancellation of other agreements with the HKSAR. However, on 7 September 2020, the Federal Government declared that it did not currently intend to terminate or suspend the agreement concerning mutual assistance in criminal matters. The latter had been signed and entered into force at the same time as the SFO agreement. In this instance, Hong Kong pre-empted any German action. On 10 November 2020, the Government of the HKSAR, in accordance with the instruction of the Central People’s Government, informed the German Consulate General that Hong Kong suspended the agreement concerning mutual legal assistance in criminal matters.
One may wonder why the adoption of the NSL was of concern to Germany. Germany took the view that a “number of provisions of the Hong Kong National Security Act did not conform to the international legal obligations of China.” The Minister of State for Europe at the Federal Foreign Office explained that “[w]hen international obligations are disregarded, when fundamental freedoms and human rights are threatened, then this concerns us all.” This raises the questions of which obligations under international law China violated by adopting the NSL and why this would allow Germany to take measures in response to this violation. According to Foreign Minister Maas, China’s obligations under international law included “ensuring the rights and freedoms guaranteed by the Basic Law of Hong Kong”. The Basic Law of the HKSAR, however, is a domestic law of China which was adopted by the National People’s Congress on 4 April 1990 and entered into force on 1 July 1997 when Hong Kong reverted to China from British colonial rule. Contrary to the view expressed by Federal President Steinmeier, a violation of the Basic Law in itself thus could not constitute a violation of international law.
The adoption of the Basic Law, on the other hand, was agreed upon between China and the United Kingdom in the Sino-British Joint Declaration on the Question of Hong Kong – a legally binding international treaty that was signed by the two countries in Beijing on 19 December 1984 and which provided and laid down the conditions for the restoration of Hong Kong to China on 1 July 1997. However, even if the NSL violated the Sino-British Joint Declaration – an assertion which raises numerous complex and contentious legal questions and could be rejected with good reason – this would not allow Germany to take countermeasures; that is, internationally illegal acts in response to such a violation. International law is generally made up of a web of bilateral legal relationships. Where a treaty is breached, only the other contracting party – in this case the United Kingdom –is entitled as the injured State to take countermeasures. The Declaration, including its principle of “One Country, Two Systems”, also did not create any obligations erga omnes; that is, obligations owed to the international community as a whole. There was thus no legal basis for Germany to invoke China’s responsibility and claim from China cessation of an alleged violation of the Sino-British Joint Declaration.
While it is generally accepted that certain human rights obligations are obligations erga omnes, the NSL as such did not yet violate any of China’s human rights obligations under the ICCPR, the ICESCR or customary international law. Legislation may only provide the legal basis for such violations. This becomes clear from the fact that Germany was concerned that the NSL would “threaten the fundamental rights and freedoms” of Hong Kong’s citizens. Threats to human rights, however, are not the same as violations and do not justify the taking of countermeasures.
Germany is Hong Kong’s most important trading partner in the EU, with trade totalling approximately €13.97 billion in 2019. It could thus be argued that Germany has a strong stake in the continued stability and prosperity of Hong Kong and for that reason may attach great importance to the preservation of Hong Kong’s high degree of autonomy and the maintenance of the rule of law there. Germany may also have been concerned about the effects of any human rights violations on the business environment in Hong Kong. All these – economic – reasons, however, do not allow a State to take countermeasures. The same is true for any political motivation such as expressing “political support for Hong Kong’s autonomy” and sending “a signal of solidarity with the people of Hong Kong”.
While Germany was not allowed to take countermeasures in response to the adoption of the NSL, the measures it took were permissible. Neither the cessation of the export of military equipment and particularly sensitive dual use goods, nor the suspension of the extradition treaty with Hong Kong as such constituted a violation of international law and thus did not require any legal basis in the law of countermeasures. States are not obliged to supply military equipment outside existing treaties and the SFO agreement expressly provided that “each of the Parties may suspend or terminate this Agreement at any time by ging notification to the other. Suspension shall take effect on receipt of the relevant notification.” The same provision could be found in the Sino-German agreement concerning mutual legal assistance in criminal matters which, in turn, allowed the government of the HKSAR to suspend that treaty.
China accused Germany of “a serious breach of international law and basic norms governing international relations and gross violation of China’s internal affairs.” The question thus remains whether the German measures constituted an illegal interference in China’s internal affairs. China received support for its view from 53 other States. During the meeting of the UN General Assembly’s Third Committee (on Social, Humanitarian and Cultural Issues) on 6 October 2020, the representative of Pakistan made the following joint statement on behalf of 54 countries, including China:
“Non-interference in the internal affairs of sovereign States is an important principle enshrined in the Charter of the United Nations and a basic norm of international relations. The Hong Kong Special Administrative Region is an inalienable part of China, and Hong Kong affairs are China’s internal affairs that brook no interference by foreign forces. We support China’s implementation of ‘One Country, Two Systems’ in the Hong Kong Special Administrative Region. In any country, the legitimate power on national security issues rests with the State. The enactment of a law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region is a legitimate measure that ensures ‘One Country, Two Systems’ goes steady and enduring and that Hong Kong enjoys long-term prosperity and stability. The legitimate rights and freedoms of Hong Kong residents can be better exercised in a safe environment.”
This statement must be seen against the background of another statement made only minutes earlier by Germany’s Permanent Representative to the United Nation on behalf of 39 States. These States had declared:
“We also share concerns expressed separately by a group of UN experts that a number of provisions in the Hong Kong National Security Law do not conform to China’s international legal obligations. We have deep concerns about elements of the National Security Law that allow for certain cases to be transferred for prosecution to the Chinese mainland. We urge the relevant authorities to guarantee the rights which are protected under the ICCPR (International Covenant on Civil and Political Rights) and the Sino-British Joint Declaration, including freedoms of speech, the press and assembly. […] We also call on China to uphold autonomy, rights and freedoms in Hong Kong, and to respect the independence of the Hong Kong judiciary.”
These opposing statements show a strong divide in the international community of States over what constitutes interference in the internal affairs of a State. Not every criticism or expression of concern over developments in another country can be considered illegal interference. In particular, the principle of non-interference cannot be used to suppress genuine concerns over threats to, or violations of, human rights in a country. This would be incompatible with the rules and principles concerning the basic rights of the human person being obligations erga omnes. The UN General Assembly’s 1981 “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States” stipulates a duty of States “to refrain from the exploitation and the distortion of human rights issues as a means of interference in the internal affairs of States”. There is, however, no agreement of what constitutes “exploitation” or “distortion” of human rights issues. It must also be recalled that the UN General Assembly’s far-reaching and all-encompassing Declaration was highly controversial and was adopted by a vote of 120 in favour, with 22 (mainly Western) States against, and 6 abstentions. In any case, a General Assembly resolution is not binding international law. It is suggested that interference in the internal affairs of another State requires that the measures taken are suitable and intended to influence the political, economic, or legal developments in that State. Germany’s measures were intended as political signals of solidarity and support, aimed as much at the people in Hong Kong as at a domestic audience and the United States. It may also be questioned whether the measures were in any way apt to influence decision-making in China. However, even if Germany’s measures did not amount to interference in China’s internal affairs, they could still be considered unfriendly acts to which China could respond in kind.
Category: Political independence