Published: 23 February 2021 Author: Stefan Talmon
On Lunar New Year’s Eve on 7 February 2016, violent riots took place in Hong Kong’s Mong Kok district. During the riots, protesters hurled bricks prised from pavements at police and set fire to cars and rubbish bins. Police fired two warning shots into the air. More than 130 people were injured in the clashes, including some 90 police officers, and 64 protesters were arrested. In May 2018, nine of the protesters were sentenced by a Hong Kong Magistrates’ Court to up to four years and three months in prison. In Hong Kong, rioting carries a maximum sentence of 10 years imprisonment.
On 22 May 2019, it was reported that Hong Kong activists Ray Wong and Alan Li had been granted asylum in Germany as refugees on grounds of “well-founded fear of persecution” in Hong Kong on account of their “political opinion or membership of a particular social group”. This was the first time that persons from Hong Kong had been given asylum in Germany. Ray Wong led Hong Kong Indigenous, a group that sought to protect the city’s local identity and traditions in the face of growing influence from mainland China; Alan Li was a member of that group. The two activists fled Hong Kong in November 2017 after jumping bail to avoid rioting and assault charges for their alleged roles in the Mong Kok riots. A spokesperson for the Federal Ministry of the Interior confirmed that the two had been granted refugee status in May 2018 under section 3(1) of the German Asylum Act. Under the Asylum Act, acts of persecution must
“1. be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
2. be an accumulation of various measures, including violations of human rights which are sufficiently severe as to affect an individual in a similar manner as mentioned in no. 1.”
Acts of persecution, as defined in the Asylum Act, may take the form of discriminatory judicial measures, disproportionate or discriminatory prosecution or punishment, or the denial of judicial redress resulting in a disproportionate or discriminatory punishment. In an interview in 2018, Ray Wong had stated:
“If the German government thinks that the Hong Kong judiciary is independent, they would not grant me refugee status. It’s because they think that Hong Kong uses the judiciary to persecute Hong Kong people.”
On 23 May 2019, a spokesperson for the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region (HKSAR) stated with regard to the granting of asylum to the two Hong Kong activists:
“We express grave concern over this issue and urge Germany to strictly abide by international law and the basic norms governing international relations, respect the rule of law and judicial independence in the HKSAR, not connive with offenders, and not interfere in Hong Kong affairs and China’s internal affairs.”
This statement was echoed by the spokesperson for the Chinese Foreign Ministry who added that Hong Kong was a society governed by the rule of law and citizens’ rights were sufficiently guaranteed by the law.
The next day, the Chief Executive of the HKSAR, Mrs. Carrie Lam, told Germany’s Acting Consul General in Hong Kong that she strongly objected to, and deeply regretted, the reported granting of asylum to two Hong Kong residents who jumped bail to flee Hong Kong while awaiting trial on serious charges. Mrs. Lam noted that the World Economic Forum’s Global Competitiveness Report ranked Hong Kong first in Asia for judicial independence. She said that the granting of asylum “had unjustifiably undermined Hong Kong’s international reputation in the rule of law and judicial independence.” She also asked that her deep regrets and strong objections be conveyed to the relevant German authorities. In a separate meeting with the Acting Consul General on the same day, the Commissioner of the Chinese Foreign Ministry in the HKSAR
“lodged a solemn representation, expressing strong dissatisfaction and firm objection, and urging the German side to comply with international law and the basic standards of international relations, earnestly respect the rule of law and judicial independence in Hong Kong, recognize mistakes, change course, and not connive and shield offenders, or interfere in Hong Kong affairs and China’s internal affairs.”
In addition, the Minister Counsellor at the German Embassy in Beijing was called into the Ministry of Foreign Affairs for talks.
On 24 May 2019, the spokesperson for the Federal Foreign Office was asked whether the granting of refuge to the two Hong Kong activists could be considered an “interference” as claimed by China. The spokesperson replied:
“For us, this is a legally proven and established procedure when people come to us and apply for asylum or recognition of refugee status. […]. I am not quite sure what exactly the Chinese side has considered an interference in internal affairs. [At the last government press conference] we have also expressed our view on the human rights situation in Hong Kong. We regularly express our concerns or comment on the situation in China, and in this case also on the situation in Hong Kong. That is simply our assessment that we consistently present in the conversations with interlocutors from China. In this respect, from our point of view, this is a normal process.”
Despite this confident assertion of the German position in Berlin, the Federal Foreign Office engaged in an exercise of damage limitation in Hong Kong. On 28 May 2019, the Consulate General in the city issued the following press release:
“The Consulate General of the Federal Republic of Germany has taken note of the concern expressed by the Chief Executive of the Hong Kong Special Administrative Region (HKSAR) over the granting of refugee status to two Hong Kong residents in Germany. The Government of the Federal Republic of Germany attributes great importance to the traditionally very good bilateral relations with the HKSAR.
The Consulate General would like to reiterate that the policy of the German Federal Government towards Hong Kong has not changed and that we will continue to foster our traditionally friendly relations.
With regard to the two cases of Hong Kong citizens who informed the press about having received refugee status in Germany, it should be noted that for data protection reasons the Consulate General cannot provide any information on individual asylum cases. The Federal Office for Migration and Refugees (BAMF) is in charge of the procedure for granting the refugee status and takes decisions independently. The BAMF considers the motivation stated by every asylum seeker during the asylum proceedings in a case-by-case examination in accordance with the rule of law. The German Federal Foreign Office is not part of the decision-making process.
The Consulate General is in constant contact with the competent German authorities concerning the matter.”
The granting of refugee status to the two activists may be politically damaging to the reputation of Hong Kong’s judicial system but it does not breach international law or basic standards of international relations. The right of a State to grant asylum at its discretion is well established in international law. It is an emanation of territorial sovereignty. The refugee is within the territory of the State of refuge. As the International Court of Justice held in the Colombian-Peruvian Asylum case, the decision to grant asylum “implies only the normal exercise of the territorial sovereignty.” The decision in no way derogates from the sovereignty of the State where the offence was committed. It also does not constitute an interference in the internal affairs of, or an unfriendly act towards, that State. The arbitrator in the Cestus case stated already in 1870 that “it is a principle of universal jurisprudence that he who uses his right offends no one”. The UN General Assembly, in the Preamble to the Declaration on Territorial Asylum of 1967, also recognized that the grant of asylum from persecution “is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State”. On the contrary, asylum granted by a State in the exercise of its sovereignty shall be respected by all other States.
Category: Territorial sovereignty
DOI: 10.17176/20220627-173012-0
