Prosecuting foreigners for acts committed outside Hong Kong under the city’s new national security law could violate international agreements and be seen as unreasonable interference in other countries’ domestic affairs, legal scholars warned at a forum on Saturday.
But one expert also argued foreign governments had overreacted in swiftly suspending their extradition deals with the city amid fears over the far-reaching legislation.
Leading scholars from Hong Kong, mainland China and Australia gathered on Saturday to discuss potential problems arising from the law’s long-arm jurisdiction, which covers offences committed anywhere in the world.
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Under Article 38 of the new law, which came into force on June 30, the mainland government is granted authority to prosecute non-residents for acts of secession, subversion, terrorism and collusion related to Hong Kong, even when committed in another country.
That extraterritorial reach opened the door to foreign nationals potentially being detained when arriving in – or even transferring through – the city, triggering the suspension of extradition agreements with Australia and Canada.
That was just one of the scenarios forum attendees suggested might prove problematic when it came to the law’s extraterritorial application.
“If a Canadian citizen advocates in Canada that Hong Kong should have the right of self-determination … and encourages [Hongkongers] to form a group to achieve that, he can be arrested in principle if he passes through Hong Kong,” said Peter Chau Siu-chun, assistant law professor of the University of Hong Kong (HKU), in reference to Article 20, which criminalises secession.
He said the new law could lay the groundwork for major controversies due to its wide scope and vaguely defined language.
Ling Bing, professor of Chinese law at The University of Sydney Law School, warned enforcement could be treated as unreasonable interference in domestic affairs and a potential breach of international human rights laws.
“If Hong Kong applies the law in Australia in a way that violates the freedoms generally enjoyed under Australian law, that kind of jurisdiction could be regarded as a breach of international obligations,” he said, adding it would also be very difficult for Hong Kong or mainland authorities to obtain international cooperation in terms of evidence gathering.
Hong Kong national security law official English version:
Fu Hualing, dean of HKU’s law faculty, noted that the sweeping power of Hong Kong’s new law exceeded even the established principles of Chinese criminal law, which has extraterritorial reach only in the case of acts that are deemed crimes in the country of commission.
But Li Zhaojie, an international law professor at Tsinghua University, argued it was unfair to suggest Hong Kong’s new security law violated international obligations, particularly when it had yet to see a case tried.
“We’ll need more time for the national security law. Issues could be clarified through the process of judicial practise,” he said, also citing mainland scholars who described the law as a “deterrent to troublemakers”.
Ling, the Australian scholar, meanwhile, said that despite criticisms the new law would hamstring Hong Kong’s judicial independence, the suspension of extradition treaties – the US is expected to soon follow Australia and Canada in doing so – represented a “premature overreaction”.
“The extradition treaties actually have important safeguards that do not cover national security crimes … and exclude political offences and do not apply to nationals,” he said.
Even so, he said it was “understandable”, as the legislation created a “new loophole” that required others to surrender fugitives to the mainland even in instances where the request was not judicially reviewable.
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