A child holds a poster depicting the US flag and US President Donald Trump, during an anti-government rally in Hong Kong on December 1 last year. In the US Human Rights and Democracy Act, the US calls on its allies in the Pacific to “promote human rights and democracy in Hong Kong”. Photo: AP
by Regina Ip
by Regina Ip

The Hong Kong Human Rights and Democracy Act is a sledgehammer the US can use to crush Hong Kong

  • A study of the provisions of the new law reveals America’s intentions lie less in protecting Hong Kong freedoms than targeting China’s – and thus Hong Kong’s – rise as a serious competitor in hi-tech and economic advances
The United States’ Hong Kong Human Rights and Democracy Act of 2019 represents the first major review of its policy towards Hong Kong since 1992. Ever since its introduction into US Congress, public attention in Hong Kong has fixated on the provisions on sanctions.
Yet, scant attention has been paid to the final version signed by President Donald Trump, which contains subtle changes with far-reaching implications for Hong Kong.
Take, for example, the provisions regarding sanctions. Sanctions could be imposed by way of asset blocking or visa denial. Compared to the version passed by the House of Representatives, visa denial will only apply to foreign persons identified as having undermined “fundamental freedoms and autonomy”, but not to their “immediate family members”. Furthermore, a “sunset” clause was introduced whereby any sanctions imposed, and Section 7 which provides for the imposition of sanctions, will expire five years after the date of enactment.

Many have overlooked more important provisions, such as those concerning whether Hong Kong remains “sufficiently autonomous” to merit treatment under US laws different from that accorded to China – a differentiation perceived as pivotal to maintaining Hong Kong’s special status in the nation and in the eyes of the international community.

To resolve the difficulty of determining whether Hong Kong remains “sufficiently autonomous”, Section 4 amends the US-Hong Kong Policy Act of 1992 by stipulating comparison with the way US laws were applied to Hong Kong before July 1, 1997.

A comparison with the situation before July 1, 1997 is problematic, given the change of Hong Kong’s constitutional status. Whereas US laws were applied to Hong Kong before the transfer of sovereignty in accordance with British policies and practices, today Hong Kong is part of China, and certain US laws may not be applied to Hong Kong as though Hong Kong were a British dependent territory.

A good example is the enforcement of sanctions. As part of China, Hong Kong only enforces sanctions authorised by the UN Security Council, but not unilateral sanctions imposed by any country. If Hong Kong is punished for not enforcing sanctions imposed by the US without the UN’s blessing, that would be tantamount to punishing Hong Kong for coming under Chinese sovereignty.

Another worrisome feature of the 2019 act is the way the US calls on its allies to act in unison against Hong Kong. A new clause was added to Section 3, in the version signed into law, to urge America’s key allies in the Pacific – Britain, Australia, Canada, Japan and South Korea – “to promote democracy and human rights in Hong Kong”.

The appeal is a clear indication of the US’ wish to escalate international interference in Hong Kong’s democratic development, a matter which should be left to Hong Kong at its own pace, and in accordance with its own constitutional requirements.

Section 4 also calls on other “like-minded” democratic countries to provide visa protection for “certain Hong Kong students” who may be subject to “politically motivated” prosecutions – no doubt the outcome of vigorous lobbying for US protection by Hong Kong dissidents.

Truth is, America’s new law on Hong Kong changes nothing

More troublesome is the provision in Section 8 on sanctions reports, which implies that the US plans to call upon the governments of other countries to follow suit in imposing sanctions on people from Hong Kong.

Given the supposedly high threshold for the imposition of sanctions, which should only be triggered by “gross violations of internationally recognised human rights”, such as war crimes or torture, which has the remotest possibility of occurring here, the clarion call to the US’ most trusted allies to take action against the city is overkill which reflects a sharp deterioration of US perceptions of Hong Kong.

Gross misrepresentation of the human rights and rule of law situation by self-serving politicians to American lawmakers no doubt contributed to such a negative perception. Given the effectiveness of their global campaign to smear Hong Kong, and the government’s inability thus far to counter them, the possibility cannot be ruled out that the international targeting of Hong Kong could become a reality, in the same way the US succeeded in calling on its allies to block China’s technological rise.

Section 5 of the act, which I call the “Greater Bay Area” clause, provides the most compelling clues as to why a superpower like the US is employing a sledgehammer to crush a small nut like Hong Kong. The clause raises a red flag over China’s plan to designate Hong Kong as a “national technology and innovation centre”, and assumes that China would use Hong Kong’s special status as a separate customs territory to divert hi-tech exports from the US to China.

As the US wakes up to China’s ambition, expect an epic arms race

It means that any tech start-up which has any connection with mainland China (and it will be hard to find any without such connections) could suffer the same fate as has local artificial intelligence leader SenseTime – a ban on the import of US technology. That would, in effect, spell the end of Hong Kong’s hi-tech dream, unless it could propel its tech development without relying on US technology, which is many more years down the road.

It may well be true that provisions in the 2019 act are intended to be preventive rather than vindictive or punitive, and none of the negative effects might materialise.

But if the US does make good on its threats, there can be only one consequence – the erosion of Hong Kong’s international connections and access to the West, which would only result in pushing Hong Kong more in the direction of mainland China. This would be the opposite of what the act was intended to achieve.

Regina Ip Lau Suk-yee is a lawmaker and chairwoman of the New People’s Party