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America’s New Hong Kong Human Rights Act May Be Provocative, But It’s Not Surprising

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Trans-Pacific View | Politics

America’s New Hong Kong Human Rights Act May Be Provocative, But It’s Not Surprising

The law fits squarely within both the hawkish turn in China policy specifically and the tradition of U.S. human rights policymaking generally.

America’s New Hong Kong Human Rights Act May Be Provocative, But It’s Not Surprising

Protesters stick a poster featuring U.S. President Donald Trump on a pillar during a demonstration in Central, the financial district of Hong Kong, Nov. 28, 2019.

Credit: AP Photo/Kin Cheung

The Hong Kong Human Rights and Democracy Act is now law. Technically an amendment to the 1992 United States-Hong Kong Policy Act, which established that the United States would continue to treat Hong Kong as a separate economic and trade zone after the 1997 British handover to the People’s Republic of China, the new law requires the secretary of state to certify whether Hong Kong remains “sufficiently autonomous” from the PRC to retain its special status. It also requires the president to identify, report on, and sanction anyone who is illegally transshipping American exports to third countries via Hong Kong. Finally, the act declares that the U.S. shall not deny visas to Hong Kong applicants who have been arrested or detained because of protest activities.

Some aspects of the new law are unremarkable. It restates plenty of existing policy language, such as its many references to the 1984 Sino-British Joint Declaration and the Basic Law as the foundation for Hong Kong’s status based on the “one country, two systems” principle. Its general goals are also consistent with the longstanding U.S. claim that democracy and human rights are integral parts of the nation’s relationship with Hong Kong.

Nor are the new reporting requirements ground-breaking on their face, since Congress requires the executive to furnish reports on nearly every foreign policy issue. The U.S. Trade Representative (USTR) and the Department of Defense have reported on China’s WTO compliance and on Chinese military and security developments, respectively, since 2002, while the State Department has reported on international human rights since the 1970s, on the Hong Kong Policy Act since 1997, on religious freedom since 1999, on human trafficking since 2001, and on democracy promotion since 2003.

These continuities notwithstanding, the new law is much more provocative than the original. The certification requirement augments the earlier directive that the secretary of state simply report on developments in Hong Kong. Since “certification” is a higher bar than “reporting,” Congress can use the process to ensure that states receiving foreign aid or other special treatment (in Hong Kong’s case, special trade status) are meeting predefined criteria.

The new law also clearly intensifies policy language about human rights and democracy. Whereas the 1992 act rather mildly declared that “support for democratization is a fundamental principle” of U.S. foreign policy, the new act boldly proclaims that it is U.S. policy:

to support the high degree of autonomy and fundamental rights and freedoms of the people of Hong Kong, . . . to support the democratic aspirations of the people of Hong Kong, including the “ultimate aim” of the selection of the Chief Executive and all members of the Legislative Council by universal suffrage, . . . to support the robust exercise by residents of Hong Kong of the rights to free speech, the press, and other fundamental freedoms. . . . to support freedom from arbitrary or unlawful arrest, detention, or imprisonment for all Hong Kong residents, . . . [and] to draw international attention to any violations by the Government of the People’s Republic of China of the fundamental rights of the people of Hong Kong.

And while the 1992 act declared that human rights in Hong Kong were “of great importance” and “directly relevant” to U.S. interests there, the new law decrees that the president must identify and sanction anyone responsible for “gross violations of internationally recognized human rights in Hong Kong,” including “extrajudicial rendition, arbitrary detention, or torture.” The new law’s export control section further calls on the president to assess whether American exports have been “used to develop . . . systems of mass surveillance and predictive policing” or used for China’s social credit system.

Why This Act, And Why Now?

It is no secret that the rise in Sino-U.S. tension has spawned a near-consensus in Washington that the United States must challenge China across a wide range of interests. Congress is awash in China-related bills and resolutions: When the House passed the Hong Kong human rights bill in October, it also passed the non-binding Stand with Hong Kong Resolution, which called on the Hong Kong government to address the protesters’ central demands, and the Protect Hong Kong Act, which aims to block the export of riot control items to the Hong Kong police.

Less remarked upon, though particularly salient in this case, is that the new law fits squarely within the tradition of U.S. human rights policymaking. Since at least the 1970s, human rights concerns have influenced America’s relationships with dozens of countries. Human rights were a central subject of U.S.-China consultation in the 1990s, but these concerns were increasingly marginalized following congressional approval of permanent normal trade relations status (PNTR) in 2000 and China’s WTO accession in 2001. In the 2000s, activists and bureaucrats continued to report on China’s human rights record, but the political relationship was increasingly defined by more transactional matters of trade, finance, and regional security. Meanwhile, supporters of bilateral engagement used other metrics to argue that China was becoming freer.

But much has changed in the last few years. And if the lessons of past human rights policymaking give us any indication of what is to come, then the current anti-China mood in Washington is already spurring a return to more confrontational policies and rhetoric. Experience suggests that the United States consistently publicizes the violations of its adversaries; in years past, this meant the socialist and nonaligned states, while today it means the likes of Russia, North Korea, Cuba, Iran – and China.

Experience also suggests that the American system applies a degree of pressure on politicians to signal their support for “freedom struggles,” and that they may do so if it is consistent with their other interests. Legislators may see human rights declarations as a relatively painless way to make a name for themselves while throwing down the gauntlet to the president or the opposing party. As Republicans have assumed the mantle of the “tough-on-China” party, they have ramped up their attention to China’s human rights record. Democrats who are wary of ceding the moral high ground to the GOP are likely to adopt more such measures of their own.

Human rights issues also play a role in the persistent legislative-executive tug-of-war over China policy. Since 1972, presidents have tended to promote bilateral stability while avoiding open criticism of Beijing, but many legislators have been more assertive. President Trump stands out for his tenacity on trade, but since he almost never addresses values in Hong Kong or anywhere else, Congress is already acting to fill this vacuum.

The potential effects of the Hong Kong human rights act are hard to pin down. Its co-sponsors claim that the law shows American support for the demonstrators while also warning the Hong Kong and Beijing governments that a reduction in democracy and civil society space will spur economic consequences. But even if the United States does someday terminate Hong Kong’s special status, it is not altogether clear how this would be a victory for Hong Kongers or Congress. Washington has limited leverage, and, as the former U.S. diplomat Susan Thornton has argued, the economic fallout from termination of special status could do much to undermine “one country, two systems,” even speeding Hong Kong’s conversion into – as the saying goes – “just another Chinese city.”

The new law makes sense within the context of the American political system, but to some outside observers it smacks of interventionism, and may even confirm suspicions that outside powers are influencing the Hong Kong protests. Unsurprisingly, Chinese leaders routinely denounce Washington’s approaches to Hong Kong as interference in Chinese sovereignty and as clear attempts to contain China. In short, if the new law’s sponsors hoped to needle Beijing, then mission accomplished. Only time will tell if American legislators will be able to sustain their attention to Hong Kong and China, or whether they will revert to the transactional relationship of a decade ago.

Dr. Joe Renouard teaches at the Johns Hopkins University School of Advanced International Studies (SAIS) in Nanjing, China. His most recent book is Human Rights in American Foreign Policy: From the 1960s to the Soviet Collapse (Penn Press, 2016). He has also contributed essays to The Los Angeles Times, The National Interest, American Diplomacy, The Diplomat, HNN, and several edited collections.