Protestors wave an American flag right before clashes with police in Admiralty, 15 September 2019. Photo: Alex Yun for Lausan

Hong Kong Human Rights and Democracy Act: a critical analysis

Reading the HKHRDA from a decolonial perspective.

Editor’s note: This analysis is a collective effort that reflects multiple approaches from Lausan members. The primary author is Lausan member Kasie Lee, a San Francisco-based criminal defense lawyer. She is the immediate past president of the Asian Criminal Trial Lawyers Association of the Greater Bay Area, past president of the Asian Pacific Public Defenders Association of Greater Los Angeles, and served Asian Pacific American Bar Association for 12 years. She is also a former public defender of the Los Angeles County Public Defender’s Office and a daughter of Hong Kong immigrants.

Introduction

We are a collective of writers, researchers, and activists from Hong Kong and its diaspora, engaging with the city’s struggle from an international left perspective. We begin from a deeply-held hope for a decolonial Hong Kong self-determination, just as we see Hong Kong as a possible model of critique against imperialisms and border logics in sites of struggle elsewhere. To that end, our project hopes to build solidarity between Hong Kongers and people in resistance against oppression around the world.

Those of us overseas know the pain and longing we experience for Hong Kong does not equal the trauma and vulnerability experienced by our friends and fellow Hong Kongers facing violence at home. Yet we also understand this fight is not simply for physical survival, but for a genuine emancipatory politics. This is the spirit in which we analyze the Hong Kong Human Rights and Democracy Act (“HKHRDA”): one that both acknowledges the world as it is, but refuses to give up on what it could be.

The members of our collective have diverse perspectives on the value of reformist versus radical approaches, but all ultimately share a sincere desire to see Hong Kongers safe and free. As such, our critical analysis here of the HKHRDA is not intended to foreclose, but to expand the possibilities for thought so that both Hong Kongers and supporters overseas may approach this issue with clarity and depth.

Background

Hong Kong’s governance is designed by—and has always served—the interests of distant elites. The region’s “special” status is a euphemism for its state-like existence without self-determination. This paradoxical governance is both what makes the city valuable as an interface for global capital, and the very matter at the heart of Hong Kong’s political crisis.

Hong Kongers’ massive uprising started in June, in response to the Hong Kong government’s attempts to ram through an Extradition Bill that would expose Hong Kongers to China’s legal system—violating one of the key principles of Hong Kong’s semi-autonomy. That Bill has now been withdrawn, but protesters remain on the streets, demanding a politics that would afford Hong Kongers true ownership over their own lives.

To date, neither the Hong Kong government nor its rulers in Beijing have offered any solution, except declaring the protests illegal and responding with police violence. In light of this, many protesters perhaps understandably have lobbied the United States to provide additional leverage.

Their hope is that the U.S. will pass the Hong Kong Human Rights and Democracy Act, introduced by U.S. Senator Marco Rubio and Congressman Chris Smith. It would require the United States to:

  • Perform an annual assessment of Hong Kong’s autonomy, to determine whether the United States should maintain its separate trade and foreign policy with Hong Kong as enacted by the 1992 Hong Kong Policy Act;
  • Ban U.S. entry and freeze real property assets of anyone found responsible for forced rendition of Hong Kongers to mainland China;
  • Waive visa denials for Hong Kongers arrested for pro-democracy protest activities; and
  • Perform an annual assessment of whether Hong Kong is enforcing U.S. export regulations and sanctions.

The stated purpose of the HKHRDA is to protect Hong Kongers from extradition to China and support democracy in Hong Kong. However, the stated purpose (intent) of a given law does not always determine its subsequent application. Though the text of a law may appear sufficiently clear and unambiguous, courts may apply a literal interpretation of the law without considering its legislative intent.

To this point, we know too well that the American state has a long history of using humanitarian legal pretexts to justify aggression, exploitation, and/or exclusion—and moreover that the United States may change or even suddenly reverse its policies to achieve its interests. To quote Hong Kong labor activist Au Loong-yu’s analysis: “on the point of ‘courting foreign power,’ the tables may quickly turn on Hong Kong …. But in reality, the ‘foreign powers’ and Beijing are operating from the same script.” Hence the contingencies of global politics demand that we consider how the HKHRDA could be applied in any less-than-favorable circumstances that may arise. 

Immigration and border policy

We are concerned that portions of the HKHRDA would augment the power of U.S. immigration and border authorities to create arbitrary new categories of people who could be subject to unforeseen consequences without accountability.

On its face, Section 4(b) of the HKHRDA seeks to ensure any individual arrested, detained, or prosecuted during the 2014 Umbrella Movement protests may not be excluded from entry to the United States solely based on that fact. To do so, the act requires the U.S. Consulate in Hong Kong to create and maintain a list of such individuals for the purpose of “cross-checking” visa applications. The Bill permits the sharing of this list with “like-minded countries.”

This directive creates serious hazards and the potential for abuse. For the vast majority of Hong Kong protesters, anonymity equals safety; the HKHRDA would instead impose another layer of opaque, unaccountable state surveillance over their activity. The resulting database would contain extremely sensitive information; the real-life consequences could be severe for individuals named therein if the database were to be improperly accessed or transmitted. As countless recent examples demonstrate—from alleged leaks of patient data between public hospitals and the Hong Kong police, to the leaking of images of border crossers by U.S. Customs and Border Protection—no information is ever truly secret.

Hong Kong protesters should also know that the promises of states should never be taken for granted. While the current U.S. political establishment appears sympathetic to Hong Kong protesters, this position could change at any time, with disastrous consequences. Consider the case of Deferred Entry of Childhood Arrivals Act (“DACA”) recipients: In 2012, the Obama Administration passed DACA to create a path to citizenship for young persons brought to the United States unlawfully as children. The government created a database of personal information, including fingerprints, of nearly one million DACA recipients. Just five years later, the Trump Administration dismantled the program, and there is strong reason to suggest it may use this data to target and deport these DACA recipients.

Section 7 of the HKHRDA includes a directive to create another U.S. database for any individuals deemed responsible for the rendition of Hong Kongers into mainland China, including those who carried out the extralegal abduction of Hong Kong booksellers in 2016, according to “credible information.” This database would potentially lead to sanctions and immigration bans against those deemed responsible and their family members.

This list, on its face, would act as a deterrent against would-be violators of Hong Kongers’ human rights. However, the reach of the list is not clearly delimited. We must remember the United States has often used seemingly race-neutral laws as pretext to justify far more expansive programs of racist discrimination. Consider President Franklin D. Roosevelt’s Executive Order 9066, which in 1942 authorized the internment of persons considered a threat to national security. But without further limitations, this order served as the basis to incarcerate 120,000 individuals of Japanese ancestry and divest them of their property. Similarly, in 1913, California passed the Webb-Haney Act, which barred “aliens ineligible for citizenship” from purchasing and renting property. In practice, this “alien land law” was used to target Japanese immigrants and their U.S. citizen children—in California and 14 other states that passed their own versions.

Like Section 7 of the HKHRDA, Executive Order 9066 and the Alien Land Laws were “race-neutral.” Given the United States’ track record, is it safe to simply take the language of the HKHRDA at face value—or could it, too, be abused?

Foreign policy

We are concerned that the HKHRDA could supplant Hong Kongers’ struggle for self-determination with a U.S. foreign policy program—including policies that contravene the interests of Hong Kong people.

Section 3 of the HKHRDA clearly articulates the purpose of the Bill is to defend U.S. interests, which are distinct from the interests of Hong Kongers. For example, the Bill orders assessments on Hong Kong’s compliance with the United States’ severe sanctions against Iran. These sanctions are causing deaths of Iranian civilians; an expert appointed by the UN Human Rights Council says the sanctions violate international human rights and norms. We should oppose U.S. efforts to exploit Hong Kongers’ struggle for human rights to justify its abuses against other people. We must stand in solidarity with people suffering human rights abuses, not governments that perpetrate them.

Section 6(c)1.A “assesses whether the Government of Hong Kong is ‘legally competent’ to administer the United States-Hong Kong Agreement for the Surrender of Fugitive Offenders.” This would reaffirm the U.S. government’s leverage to force the Hong Kong government to surrender individuals for extradition to U.S. authorities, including dissidents and whistleblowers like Edward Snowden. As Au Loong-yu rightly asks, “Is helping a foreign government persecute its own dissenters the original intention of the anti-extradition movement? Wasn’t our original intention to oppose extradition policies that violate human rights?”

We are particularly concerned with the principal part of the Bill, Section 4, which reiterates the directive for an annual certification of whether Hong Kong is sufficiently autonomous to justify “special treatment” as defined by the U.S. Hong Kong Policy Act of 1992. This special treatment includes, among other things, favorable trade terms, bilateral ties and recognition as a sovereign entity for the purposes of commerce, transportation, and education exchange. The 1992 Act also empowers the U.S. President to issue a negative certification of Hong Kong’s autonomy, which could revoke Hong Kong’s distinct status under U.S. law.

Supporters of the HKHRDA argue the prospect of revoking of Hong Kong’s special status would deter human rights abuses by China, which benefits from Hong Kong’s special status. But the United States also similarly benefits from Hong Kong’s special status—and the history of U.S.-China relations demonstrates that U.S. economic self-interest has always trumped its stated concern for human rights. For example, the United States awarded “most favored nation” trade relations to China in 1979, subject to an annual Congressional review of China’s human rights. Yet despite finding ample evidence of violations, the United States passed waivers every year to continue trading with China. By 2000, it eliminated this reporting requirement and established permanent normal trade relations with Beijing. A similar option to waive the annual certification is written into Section 4 HKHDRA. This ability to opt-out serves the same purpose: to allow the United States to abide by its promises when it has financial incentive to do so—and to ignore them when it does not.

Conclusion

We know that the problems facing Hong Kong people are not merely of local, but international politics. We recognize the historical and geopolitical contradictions that have led to Hong Kong’s paradoxical governance, and we are angry that our fellow Hong Kongers, including our friends and family, must bear the burden. In light of Beijing and Hong Kong authorities’ ongoing campaign of violence against protesters, we understand protesters’ desire for outside intervention that could offer some protection. We acknowledge that the HKHRDA, on its face, could offer certain strategic advantages to Hong Kongers in this moment of crisis.

At the same time, we cannot endorse any policy that places Hong Kong’s fate in the hands of (yet another) empire’s self-interest. Just as Hong Kongers have been exploited and forsaken by the United Kingdom, American “allyship” is filled with stories of betrayal. One needs only to consider the United States’ abrupt de-recognition of Taiwan’s Republic of China government as the sole legitimate representative of China in 1979, when it saw greater value in relations with the People’s Republic of China. There is no guarantee the United States will not one day decide its promises to Hong Kong are similarly disposable.

We also hope we have called attention to the potential danger of treating U.S. immigration policies and surveillance as tools to “help” Hong Kongers, as well as the global abuses of U.S. foreign policy in which the HKHRDA would compel Hong Kong’s participation. In our efforts to fight state violence in Hong Kong—we cannot support state violence elsewhere. As the slogan goes, we must leave no one behind.

Even if the HKHRDA were implemented in good faith, the Bill would be, at best, a stop-gap measure. It does not remedy the geopolitical paradox at the root of Hong Kongers’ difficulty. Nor does it appear to move Hong Kong’s resistance movement any closer to genuine self-determination. Most importantly, it decenters the urgent necessity for a radical reimagination of Hong Kong’s future: where Hong Kong’s existence is no longer underwritten by a superpower’s self-interest, but by the power of our people—in cross-border solidarities with others in resistance against imperialism around the world.

Nonetheless, we understand the HKHRDA enjoys strong support, and that it may proceed in Congress toward becoming law. If that is the case, we urgently ask Hong Kongers and their allies to examine its text thoroughly and propose common-sense improvements, such as the elimination of immigration databases and the introduction of stronger procedural safeguards against abuse. Any effort to pass the HKHRDA must include the Protect Hong Kong Act, introduced in the House of Representatives on September 11, 2019, which would ban U.S. commercial exports of nonlethal weapons and crowd control items to the Hong Kong Police Force, with no further strings attached.

Regardless of any legislative outcomes, we hope this moment will inspire continued critical discussion among Hong Kongers about our relationships to Western state power.