Hong Kong HRDA

On Wednesday 27 November, President Trump signed the Hong Kong Human Rights and Democracy Act of 2019 (HKHRDA), which, among other things, amends the Hong Kong Policy Act of 1992.

The first thing to emphasize is that the new law is not the result of one of the individual actions to which we are so accustomed by the American President, but that it is a rule approved in the House of Representatives and Senate almost unanimously by Republicans and Democrats.

The HKHRDA is a clear support for the participants in the demonstrations and riots that have been taking place in Hong Kong for a few months now and aims to put pressure on China to seek a peaceful and amicable solution to the conflict in the former British colony.

The main mandates of HKHRDA are as follows:

  1. The Secretary of State, after consulting the reports issued by various agencies, must submit an annual statement justifying the maintenance of Hong Kong’s special treatment under the 1992 Act to the Foreign Affairs Committees of the two Houses of Congress. This means, among other things, that otherwise the autonomous city would lose the trade agreements it has with the United States, which to date have conferred on it a very favourable trade situation. It would also cease to be exempt from international sanctions imposed by North America.
  2. The President should identify and punish those responsible for arbitrary arrests, torture and forced confessions in Hong Kong, as well as those responsible for acts and decisions that contravene China’s legal obligations towards Hong Kong and in general to those involved in important violations of internationally recognised human rights.
  3. The President should develop a strategy to protect US interests related to Hong Kong.
  4. The President should report annually to a specific committee of members of the Senate and House of Representatives on Hong Kong’s compliance with US export control legislation, especially with regard to dual-use goods and the application of sanctions, primarily to North Korea and Iran.
  5. U.S. visas will not be denied on the grounds that the applicant has been arrested, detained or sanctioned for participating in protests in Hong Kong in support of democracy, human rights and the rule of law.

We can say that in general these measures are not excessively rigorous and their real effectiveness will depend very much on the positions adopted by the American Administration. For example, if the President identifies and punishes a small number of people and of low rank, the restrictions will be of little identity. In addition, everything remains highly dependent on the remarkably discretionary assessments made by the Secretary of State and other public entities.

However, the People’s Republic of China has repeatedly expressed its outright rejection of HKHRDA. In this sense, we share its position; we have always been opposed to international sanctions for many reasons, including their scant practical effectiveness and their perverse effect in fundamentally harming the weakest sectors of society. Also, because they imply interference in the internal affairs of a country contrary to international law and because they exacerbate the spirits of the most radical sectors of the sanctioned state. However, in addition to all these reasons, the HKHRDA is particularly reprehensible on the grounds that it was adopted at a very delicate moment, that is to say, precisely when the United States and China are facing each other, and maintaining tough negotiations, because of the tariff issue in which it appeared that there was a rapprochement of positions. From this perspective, HKHRDA does nothing more than add fuel to a bonfire that seemed to be beginning to shrink.


Authors

  • José Luis Iriarte, Of Counsel
  • Lupicinio Rodriguez, Managing Partner