Analysis: HK Human Rights and Democracy Act of 2019

On August 23, a Chinese Ministry of Foreign Affairs spokesman shouted “Hong Kong is part of China and its affairs are China’s internal affairs. We will not allow the U.S. to meddle and wreak havoc.” Less than an hour later, young protest leader Joshua Wong praised Rep. Jim McGovern and Senator Marco Rubio for issuing a statement asking President Donald Trump to speak out on Hong Kong.

The cycle of mutual rhetoric has been on a loop since mid-June when the protests in Hong Kong started but recently took an unexpected turn when more than a hundred thousand people marched to the US Consulate in Hong Kong to support the proposed Hong Kong Human Rights and Democracy Act (HRDA) of 2019. With Congress returning from summer recess, the 2019 Act is gathering support and new proposals are soon to be submitted, including a law that would ban the sale of law enforcement equipment to the Hong Kong Police Force.

As an American supporter of both this and the Umbrella Revolution of 2014, I find myself torn on whether the American government can play a positive role in this movement and whether it even has the diplomatic, political, or legal tools that match the challenge. As written, HRDA targets the wrong things and Washington has already played a tangible, unintentional, and highly messy role in accidentally triggering events that led to Hong Kong’s ‘Revolution of Our Times.’

The original Extradition Bill, which sparked the months of protests, appears to have originated with Carrie Lam, Hong Kong’s chief executive. The public record shows that Beijing only took an interest in Lam’s proposed amendment to the Fugitive Ordinance Law after a delegation of Pan-Democrats visited Mike Pence and other politicians in Washington, D.C. last March to raise their concerns. Beijing mobilized their influence networks in Hong Kong and began denouncing U.S. “interference” because they feared Trump would use the Extradition Bill as a wedge issue in the trade war.

That poses a conundrum for policymakers in America who want to help Hong Kongers without unintentional consequences. The odds of such moves being successful are already questionable. The Hong Kongers who place so much hope in the Human Rights and Democracy Act may be unaware that this is the fourth piece of legislation bearing this name introduced in both houses of Congress since 2014. None of them, so far, have even been brought to a committee vote.

After the withdrawal of the Extradition Act, the Hong Kong protestors are now largely focused on police brutality and universal suffrage. Nothing in the 2019 version of the act – as written now – directly addresses the current unmet demands. Instead, each re-introduction of HRDA has built off the first proposal, sponsored by Sen. Sherrod and Rep. Chris Smith in November 2014, that would suspend the US-Hong Kong Policy Act of 1992 “unless the President certifies to Congress that Hong Kong is sufficiently autonomous to justify different treatment.”

In what would become a patter, neither Rep. Smith’s H.R. 5696 in the House or Brown’s S.2922 in the Senate were even brought to committee votes in the 113th Congress. Each new iteration of HRDA has retained, but added to, reporting requirements and accompanying presidential certification mechanism ensuring that Hong Kong is still sufficiently autonomous to warrant the special legal and diplomatic status that the 1992 Policy Act carves out for Hong Kong.

The 1992 Policy Act was mostly a transitionary document with thirty-three provisions carried over the same legal, political, and economic distinctions that existed between colony and the United Kingdom when it was written to the Hong Kong Special Administrative Region created on July 1st, 1997. Variations of ‘continue’ occur 24 times in the document but it included two provisions that diverged from previous American policy towards Hong Kong in two ways: reporting requirements (§5722) and authorization for the President (§5722) to revoke any or all of the 33 provisions in the Act via Executive Order. Should things go badly, or Beijing be found abusing the legal niche carved out for Hong Kong, the 1992 Policy Act would be suspended in full or in part, wherein Hong Kong would become ‘just another Chinese city’ to the US government.

Beijing lashed out at these provisions predicting that the United States would use it to “sow discord between the HK SAR and central government.” Arguably, the 1992 Policy Act functioned as intended to immunize Hong Kong, and American firms operating there, from the changing tides of Sino-US relations. The 1106 km² of the Hong Kong Special Administrative Region, as well Macau, is the only place in China not subject to Trump’s Trade War tariffs. [TM1] The first bill Mitch McConnell proposed in his Senate career protected and insured a seamless post-Handover transition for exactly the kind of American-registered businesses operating in Hong Kong that allowed McConnell’s father-in-law to gift him $25 million.

Restarting the reporting and introducing a yearly certification process was the crux of the first (failed) Hong Kong Human Rights and Democracy Act introduced in 2014, and has remained in every subsequent version introduced. The proposal suffered a critical flaw, however, because the instrument it was introducing was little more than a reminder of tools already at the president’s disposal.

With a handful of exceptions, it remains unclear which of the 33 provisions of the 1992 Policy Act could or should be revoked in failure to introduce meaningful democratic reform as promised. Should the of the Hong Kong Dollar no longer be freely exchanged in the US per §5713(6) or cultural and educational exchanges be called off (§5713)? Suspending a law written to protect American interests is not, at this time, a serious threat. Foreign businesses located in Hong Kong would likely already be making their way for the door should the political environment here deteriorate to the point that the State Department recommends suspending most of the 1992 Policy Act.

Any weighing of the US role also has to tackle the presence of Trump. Unreliable even at his best, he has used questions about Hong Kong to call the protests “riots” and praised Xi’s handling of the crisis. In a recent op-ed, Senator Rubio pointed out that the US-Hong Kong Policy Act of 1992 empowers the President to include Hong Kong in the Tiananman Square Sanctions. The PROTECT Hong Kong Act introduced this week proposes nearly identical measures that Trump could have enacted with an Executive Order at any point since mid-July. The 1992 Act offers other ways to embarrass and pressure both Beijing and the Hong Kong government in ways that likely, such as ending Hong Kong’s exemption to the sale of sensitive technologies to China.

Trump’s failure to act speaks to his priorities. Despite Trump’s inaction, things appear to be moving quickly in Washington recently. The Uyghur Human Rights Policy Act of 2018 was also legislatively ‘ghosted’ without explanation, even after Western attention in April 2019, when Secretary of State Pompeo indicated that the Magnitsky Act might be expanded to include CCP officials responsible for the most egregious human rights violations of our time. A 2019 version, however, was passed in the Senate on September 11th.

There are contradictory tensions at play between what Hong Kongers want from a passage of the 2019 Act and the kind of policy that would most likely be effective. The Hong Kongers who marched to the US Consulate on September 9th want to see international support for our cause and consequences for Hong Kong and Beijing political leadership that act with impunity. A more effective policy, however, would be one where coercive threats and ‘red lines’ are communicated in backdoor channels more than op-ed pages and tweets. It is far more difficult to walk Beijing out of defensive crouch once knee-jerk hardline positions made in public.

US policymakers have far more leverage in shaping Hong Kong’s long-term future than helping resolve the current crisis. Hong Kong’s special status is even more important to China as it is to the US. That status was, and remains, conditional – a fact Beijing seems to have forgotten. Similarly, proposals like having state-owned enterprise (SEO) takeover of the Hong Kong economy might carry greater risk than police brutality. Likewise, the most ambitious versions of creating a ‘Greater Bay Area’ in preparation for the 2047 expiration of One Country, Two Systems are incompatible with the “sufficiently autonomous” economic system required in the 1992 Act.

Perhaps the worst outcome would be for the 2019 Act to become law, but none of its enforcement provisions are follow through out of fear of retaliation. For instance, American firms and residents based in China are so exposed to CCP retaliation over sanctions that invoking the national security waivers written into the bill seems likely. Behind closed doors, however, the threat of financial sanctions could be used to deter even more egregious behavior by pricing in risks and consequences early for the people making the decisions.

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