Hastings Law Journal Hastings Law Journal
Volume 73 Issue 1 Article 6
1-2022
The United States’ Ineffective Response Towards Hong Kong’s The United States’ Ineffective Response Towards Hong Kong’s
National Security Law National Security Law
Justine Yu
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161
The United States’ Ineffective Response Towards
Hong Kong’s National Security Law
JUSTINE YU
†
The city of Hong Kong has undergone a dramatic political shift in recent years. Once
known as a safe haven for freedom of speech and expression,
1
HK is now a place where
anti-Communist Party views are suppressed under the National Security Law.
2
The
imposition of national security legislation over HK drew wide criticism from Western
nations and pro-Democracy activists. This Note will focus specifically on the United
States’ response and critique its shortcomings in response to the NSL. Because the
current U.S. approach fails to achieve its desired outcome of upholding HK autonomy
and democracy, this Note will also set forth a recommendation for how the United States
should respond moving forward to obtain a more favorable outcome.
†
J.D. 2022, University of California, Hastings College of the Law; Senior Notes Editor, Hastings Law
Journal. Thank you to my family for their endless love, support, and constant encouragement as I pursue my
passions. I would also like to thank the HLJ staff for all their hard work and for providing invaluable feedback
on this Note.
1
. Jin Wu & Elaine Yu, What You Can No Longer Say in Hong Kong, N.Y. TIMES (Sept. 4, 2020),
https://www.nytimes.com/interactive/2020/09/04/world/asia/hong-kong-speech.html.
2
. Hong Kong: Beijing Dismantles a Free Society, HUM. RTS. WATCH (June 25, 2021, 8:00 AM),
https://www.hrw.org/news/2021/06/25/hong-kong-beijing-dismantles-free-society.
162 HASTINGS LAW JOURNAL Vol. 73:1
TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 163
I. BACKGROUND ON HONG KONG’S NATIONAL SECURITY LAW ................... 165
A. OVERVIEW OF HONG KONG’S NATIONAL SECURITY LAW ............ 166
B. THE NATIONAL SECURITY LAW’S KEY POINTS OF CONTENTION .. 167
C. THE LAW SERIOUSLY UNDERMINES THE CONCEPT OF “ONE
COUNTRY, TWO SYSTEMS” FOR HONG KONG ............................. 171
II. THE UNITED STATES’ RESPONSE TO HONG KONG’S NATIONAL SECURITY
LAW ..................................................................................................... 173
A. CONSEQUENCES UNDER THE HONG KONG AUTONOMY ACT ........ 173
B. ELIMINATION OF HONG KONG’S SPECIAL TREATMENT UNDER
EXECUTIVE ORDER 13936 ........................................................... 175
C. PRESIDENT BIDEN’S DIRECTIVE TO DEFER THE DEPARTURE OF HK
RESIDENTS ................................................................................... 176
III. THE UNITED STATES’ RESPONSE IS UNLIKELY TO POSITIVELY SHAPE
CHINA’S IMPLEMENTATION OF HONG KONG’S NATIONAL SECURITY
LAW ..................................................................................................... 177
IV. ALTHOUGH UNLIKELY TO MAKE POSITIVE CHANGES, THE UNITED STATES
STILL HAS A DUTY TO SPEAK OUT AND TAKE CONCRETE ACTION
AGAINST THE LAW .............................................................................. 180
V. BY SHINING A SPOTLIGHT ON HONG KONG, THE CURRENT UNITED STATES
RESPONSE MAY FURTHER DETERIORATE ONE COUNTRY, TWO
SYSTEMS UNDER THE NATIONAL SECURITY LAW .............................. 182
A. BY INFLUENCING THE INTERNATIONAL PERCEPTION OF HONG
KONG, THE UNITED STATES PAVES THE WAY FOR THE PRC TO
HAVE A TIGHTER GRASP OVER THE CITY ................................... 182
B. CHINA MAY ADHERE TO STRICT IMPLEMENTATION OF THE
NATIONAL SECURITY LAW TO DISPLAY ITS SOVEREIGNTY OVER
HONG KONG ................................................................................ 184
VI. LOOKING AHEAD: A SHIFT IN CURRENT UNITED STATES POLICY COULD
MARGINALLY SHAPE IMPLEMENTATION ............................................ 185
CONCLUSION .................................................................................................. 190
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 163
INTRODUCTION
Under the Sino-British Joint Declaration, the United Kingdom (UK)
returned Hong Kong (HK) to the People’s Republic of China (PRC) in 1997 on
the condition that HK continues to exercise a high degree of autonomy for fifty
years.
3
Since then, HK has exercised its autonomy by entering into its own
international agreements and being recognized in international organizations,
such as the World Trade Organization (WTO), as a separate and distinct entity
from the PRC.
4
This view of HK as separate and distinct is known as the concept
of “one country, two systems.”
5
Under this framework that the PRC agreed to in
the Sino-British Joint Declaration, HK should theoretically continue to exercise
a high degree of autonomy until at least 2047.
6
Despite HK’s promised autonomy, the National People’s Congress (NPC)
Standing Committee in the PRC abolished one country, two systems by enacting
national security legislation over HK on June 30, 2020—one day shy of the
city’s twenty-third anniversary of the British-Chinese handover.
7
Since then,
many countries have condemned the National Security Law (“the NSL” or “the
Law”) and urged the PRC to reconsider its decision to implement such a far-
reaching law because it undermines the one country, two systems framework.
8
The United States, along with other countries, has even changed its foreign
policy towards HK in response to the Law’s enactment.
After asserting that the NSL suppresses civil liberties and human rights and
erodes the PRC’s one country, two systems framework for HK, the United States
has demonstrated its disapproval in three concrete ways. First, the United States
has explicitly condemned the Law by issuing joint statements with its G7 allies
and others.
9
Second, it has implemented sanctions on Chinese officials and HK
3
. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of the People’s Republic of China on the Question of Hong Kong, China-U.K., art. 3, Dec. 19,
1984, 1399 U.N.T.S. 62 [hereinafter Sino-British Joint Declaration].
4
. Bureau of E. Asian & Pac. Aff., U.S. Relations With Hong Kong, U.S. DEP’T OF STATE,
https://www.state.gov/u-s-relations-with-hong-kong (last updated Aug. 28, 2020); Hong Kong, China and the
WTO, WORLD TRADE ORG https://www.wto.org/english/thewto_e/countries_e/hong_kong_china_e.htm (last
visited Jan. 3, 2022); Horace Yeung & Flora Huang, “One Country Two Systems” as Bedrock of Hong Kong’s
Continued Success: Fiction or Reality?, 38 B.C. INT’L & COMP. L. REV. 191, 191 (2015).
5
. Stanly Johny, Explained: What is China’s One Country Two Systems Policy?, THE HINDU (Sept. 4,
2019, 1:31 PM), https://www.thehindu.com/news/international/explained-what-is-chinas-one-country-two-
systems-policy/article29279828.ece.
6
. Sino-British Joint Declaration, supra note 3.
7
. Grace Tsoi & Lam Cho Wai, Hong Kong Security Law: What is it and is it Worrying?, BBC NEWS
(June 30, 2020), https://www.bbc.com/news/world-asia-china-52765838.
8
. Media Note, Off. of the Spokesperson, U.S. Dep’t of State, G7 Foreign Ministers’ Statement on Hong
Kong (June 17, 2020), https://2017-2021.state.gov/g7-foreign-ministers-statement-on-hong-kong/index.html
[hereinafter G7 Foreign Ministers’ Statement on H.K.].
9
. Id.; Media Note, Off. of the Spokesperson, U.S. Dep’t of State, Joint Statement on Hong Kong (May
28, 2020), https://www.state.gov/joint-statement-on-hong-kong [hereinafter Joint Statement on H.K.]; Media
Note, Off. of the Spokesperson, U.S. Dep’t of State, Joint Statement on the Erosion of Rights in Hong Kong
(Aug. 9, 2020), https://2017-2021.state.gov/joint-statement-on-the-erosion-of-rights-in-hong-kong/index.html
[hereinafter Joint Statement on the Erosion of Rights in H.K.]; Press Statement, Michael R. Pompeo, U.S. Sec’y
164 HASTINGS LAW JOURNAL Vol. 73:1
leaders under both the Hong Kong Autonomy Act (HKAA) and Executive Order
13936 (“the Order”).
10
Finally, the United States has eliminated its special
treatment towards HK, repudiated its extradition treaty with the city, and ended
its military training program under the Order.
11
Given how the NSL infringes on what the United States considers to be
core human rights, the United States has the responsibility to speak out and take
concrete action against the NSL. The United States has ostensibly fulfilled its
moral and legal duty by shining a spotlight on HK, both in its words and actions.
But instead of upholding one country, two systems, the current U.S. response,
though well-intentioned, is likely to make the situation worse for HK residents
under the NSL. The current U.S. response further undermines one country, two
systems because it inadvertently paves the way for the PRC to have a tighter
grasp over HK. However, the United States could still achieve a more positive
outcome in attempting to uphold HK’s autonomy and shape the PRC’s
implementation of the Law on the margins by working together with its allies to
implement a cohesive plan that places international pressure on the PRC to
uphold HK autonomy.
Part I of this Note provides an overview of the NSL and discusses Hong
Kong’s political scene at the time of the Law’s passage. Part I also addresses the
NSL’s controversial aspects and how its passage threatens to erode Hong Kong’s
“one country, two systems” framework. Part II explains how the United States
critically responded to the NSL’s passage. During Trump’s presidency,
Congress enacted the Hong Kong Autonomy Act while Trump issued Executive
Order 13936. The Biden administration has since deferred the departure of HK
residents currently within the United States. Part III examines the efficacy of the
U.S. response in shaping the NSL’s imposition. First, Part III discusses China’s
adherence to the principle of non-interference on internal affairs. Second, Part
III explains how the U.S. response is unlikely to positively shape the NSL’s
implementation based on China’s disdain of foreign interference on internal
affairs. Part IV discusses the United States’ duty to act against the NSL despite
its initial, unsuccessful attempt to make positive changes. Part V describes how
the U.S. response could cause the further deterioration of one country, two
systems. Part VI identifies the ways in which the United States should proceed
of State, P.R.C. Proposal To Impose National Security Legislation on Hong Kong (May 22, 2020), https://2017-
2021.state.gov/prc-proposal-to-impose-national-security-legislation-on-hong-kong/index.html [hereinafter
Statement on NSL].
10
. Press Statement, Michael R. Pompeo, U.S. Sec’y of State, Designations of National People’s Congress
Officials Undermining the Autonomy of Hong Kong (Dec. 7, 2020), https://2017-2021.state.gov/designations-
of-national-peoples-congress-officials-undermining-the-autonomy-of-hong-kong/index.html [hereinafter
Designations of NPC Officials]; Bureau of E. Asian & Pac. Aff., Identification of Foreign Persons Involved in
the Erosion of the Obligations of China Under the Joint Declaration or the Basic Law, U.S. DEP’T OF STATE
(Oct. 14, 2020), https://www.state.gov/identification-of-foreign-persons-involved-in-the-erosion-of-the-
obligations-of-china-under-the-joint-declaration-or-the-basic-law.
11
. Exec. Order No. 13936, 85 Fed. Reg. 43,413, 43,413–14 (July 14, 2020).
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 165
to shape the NSL’s implementation on the margins. Finally, this Note concludes
with a summary.
I. BACKGROUND ON HONG KONG’S NATIONAL SECURITY LAW
Hong Kong experienced political unrest in the year leading up to the NSL’s
passage. Beginning in June 2019, many HK residents protested a 2019 HK bill
that would have allowed HK residents to be extradited to the mainland if they
were suspected of certain criminal activity.
12
This proposal caused an uproar
among the people of HK because of concerns related to “the possibility of
politically motivated persecution and unfair trials on the mainland” if alleged
criminals in the city could be extradited to mainland China.
13
Others have argued
that the extradition bill was merely another way for the central government to
assert its influence over HK’s political scene or compromise the city’s high
degree of autonomy and the one country, two systems principle.
14
The HK Legislative Council (LegCo) brought some respite to the city after
months of protests and unease, but its efforts alone were insufficient to
completely halt political unrest in HK. LegCo withdrew the extradition bill to
concede to the people of HK.
15
However, the central government was displeased
with calls for HK independence and protests in response to the 2019 HK
extradition bill.
16
In light of this opposition, the NPC Standing Committee
promulgated national security legislation over HK to “maintain the [city’s] long-
term stability and prosperity”
17
and “change the long-term ‘defenseless’ status
in the field of national security.”
18
Although the withdrawal of the 2019 HK
extradition bill eased some of the political tension in HK,
19
the NSL’s passage
sparked another tense moment in HK.
12
. The Hong Kong Protests Explained in 100 and 500 Words, BBC NEWS (Nov. 28, 2019),
https://www.bbc.com/news/world-asia-china-49317695.
13
. Tony Cheung, What is Behind Hong Kong’s Anti-Extradition Protests?, S. CHINA MORNING POST
(June 13, 2019, 5:00 AM), https://www.scmp.com/news/hong-kong/politics/article/3014261/what-behind-hong-
kongs-anti-extradition-protests.
14
. Grace Shao, What the Suspension of Hong Kong’s Extradition Bill Means for the City and Carrie Lam,
CNBC (June 17, 2019, 11:29 PM), https://www.cnbc.com/2019/06/17/suspension-of-hong-kongs-china-
extradition-bill-and-what-it-means.html.
15
. See Hong Kong Completes the Process of Withdrawing the Extradition Bill, But Will It Stop the
Protests?, TIME (Oct. 23, 2019, 4:01 AM), https://time.com/5707831/hong-kong-extradition-bill-withdrawal.
16
. See Mingmei, China Focus: Draft Decision on HK National Security Legislation Submitted to NPC,
XINHUA (May 22, 2020, 11:30 AM), http://www.xinhuanet.com/english/2020-05/22/c_139078396.htm.
17
. Liang Caide, Chinese Consulate Gen. in Kota Kinabalu, Ministry of Foreign Aff. of China, National
Security Legislation for Hong Kong is the Cornerstone of Enduring Hong Kong’s Stability and Prosperity (July
27, 2020), https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zwjg_665342/zwbd_665378/t1800976.shtml.
18
. Mingmei, supra note 16; see also SUSAN V. LAWRENCE & MICHAEL F. MARTIN, CONG. RESEARCH
SERV., R46473, CHINA’S NATIONAL SECURITY LAW FOR HONG KONG: ISSUES FOR CONGRESS 4–6 (2020)
(discussing China’s rationale for enacting the Hong Kong National Security Law).
19
. See Hong Kong Completes the Process of Withdrawing the Extradition Bill, But Will It Stop the
Protests?, supra note 15.
166 HASTINGS LAW JOURNAL Vol. 73:1
A. OVERVIEW OF HONG KONG’S NATIONAL SECURITY LAW
The NPC’s decision to promulgate national security legislation over HK
was controversial from the beginning. First, the NPC Standing Committee
drafted the NSL in secrecy.
20
Second, the text itself was hidden from public view
until after its imposition on June 30, 2020.
21
Not even the leader of HK, Chief
Executive Carrie Lam, knew the specific contents of the NSL before its
enactment.
22
Third, the NSL criminalizes four broad offenses—secession,
subversion, terrorism, and collusion with foreign countries
23
—and has rather
harsh penalties for violators; NSL violations can result in sentences of up to life
imprisonment if the offense is of a “grave nature.”
24
The NSL is vaguely written and covers a wide array of criminal activity.
For example, secession is defined as unlawfully altering HK’s legal status,
25
while subversion is defined as undermining the PRC.
26
The definitions for
terrorism and collusion are even more concerning. According to the text, an
individual can be found guilty of terrorism if he or she participates in any violent
activity that harms people or disrupts public utilities,
27
or advocates or incites
terrorist activities.
28
On the other hand, collusion with foreign countries is
defined as participating in any activity that is detrimental to the PRC, such as
stealing, spying, or unlawfully obtaining state secrets or intelligence and
relaying it to a foreign country or institution.
29
The NPC sidestepped the HK legislative process
30
when it decided to
impose national security legislation over the city without a formal introduction
into HK’s LegCo or a vote by its members. Nor did the central government offer
an alternative method for any HK official to comment or provide meaningful
feedback on the Law.
31
Moreover, the NSL is written in a way that covers a
20
. Tsoi & Wai, supra note 7.
21
. Id.
22
. Id.
23
. See The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong
Special Administrative Region, HONG KONG GAZ. (H.K.) (2020), https://www.gld.gov.hk/egazette/pdf/
20202448e/egn2020244872.pdf (promulgated by the Standing Comm. People’s Cong., June 30, 2020, effective
June 30, 2020).
24
. Id. at arts. 20, 22, 29.
25
. Id. at art. 20(2).
26
. Id. at art. 22(1).
27
. Id. at art. 24. The Law also criminalizes participating in a terrorist organization and supplying terrorists
with weapons, information, or transportation. Id. at arts. 25–26.
28
. Id. at art. 27.
29
. Id. at art. 29. In addition, the prohibition against collusion covers the following acts: undermining Hong
Kong or the PRC’s sovereignty, disrupting the implementation of laws, sanctioning Hong Kong or the PRC, or
otherwise provoking hatred towards the central government. Id.
30
. See Bills, LEGIS. COUNCIL OF H.K., https://www.legco.gov.hk/general/english/bills/bill_1620.htm (last
visited Jan. 3, 2022).
31
. Statement, H.K. Bar Ass’n, The Law of the People’s Republic of China (“PRC”) on Safeguarding
National Security in the Hong Kong Special Administrative Region (“HKSAR”): Statement of the Hong Kong
Bar Association, 1 (¶ 2–3) (July 1, 2020), https://www.hkba.org/sites/default/files/20200701%20HKBA%
20statement%20on%20Safeguarding%20National%20%20Security%20in%20HKSAR.pdf.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 167
broad range of criminal activity. Unsurprisingly, this law was controversial from
the beginning and generated a plethora of criticism.
B. THE NATIONAL SECURITY LAW’S KEY POINTS OF CONTENTION
The PRC has a duty to safeguard national security and implement such laws
that will protect its people from harm.
32
However, the PRC can do so only if the
imposition of national security measures does not violate its international
commitments under the Sino-British Joint Declaration.
33
The central
government received a great deal of criticism on its imposition of national
security legislation over HK as well as on the specific contents of the Law itself.
The criticism, though plentiful, can be summarized into four main points. First,
the text’s overall ambiguities and vague description hampers free speech.
34
Second, Article 38 of the NSL claims extraterritorial jurisdiction over HK
residents and non-residents.
35
Third, the Law does not provide for the right to a
fair trial.
36
Finally, perhaps the biggest critique is how the Law appears to
seriously undermine the concept of one country, two systems—a framework that
has allowed HK to flourish for the past twenty-four years.
First, the NSL is vaguely written with harsh penalties and broadly defined
offenses. With up to life imprisonment for offenses of a grave nature,
37
the Law
is a practical way of chilling anti-Communist Party sentiment. Because any act
that the Chinese government perceives as overthrowing the “central power of
the [PRC] or the body of power of [HK]” can result in a violation of the NSL,
38
the Law can theoretically cover all sorts of behaviors and actions. In addition,
Article 22’s definition of subversion is concerning because it apparently
contravenes the right to assemble and participate in demonstrations as provided
32
. See Six Things You Need to Know about the National Security Legislation for Hong Kong SAR,
MINISTRY OF FOREIGN AFF. OF THE PRC (June 10, 2020), https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/
t1787600.shtml.
33
. See G7 Foreign Ministers’ Statement on H.K., supra note 8 (condemning China’s decision to
promulgate national security legislation over Hong Kong); Javier C. Hernández, Harsh Penalties, Vaguely
Defined Crimes: Hong Kong’s Security Law Explained, N.Y. TIMES (Oct. 11, 2021), https://www.nytimes.com/
2020/06/30/world/asia/hong-kong-security-law-explain.html.
34
. Wu & Yu, supra note 1; Naomi Xu Elegant, If You’re Reading This, Beijing Says its New Hong Kong
Security Law Applies to You, FORTUNE (July 7, 2020, 3:55 AM), https://fortune.com/2020/07/07/hong-kong-
law-scope-extraterritorial-jurisdiction.
35
. Sarah Cook, Through Hong Kong, Beijing Channels Its Repression to the World, THE DIPLOMAT (July
13, 2020), https://thediplomat.com/2020/07/through-hong-kong-beijing-channels-its-repression-to-the-world.
36
. See Hong Kong’s National Security Law: 10 Things You Need to Know, AMNESTY INT’L (July 17,
2020, 7:09 PM), https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-
you-need-to-know.
37
. See Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong
Special Administrative Region, at arts. 20, 22, 24–25, 29, 24.
38
. Id. at art. 22(2).
168 HASTINGS LAW JOURNAL Vol. 73:1
by the HK Basic Law and International Covenant on Civil and Political Rights
(ICCPR).
39
Article 24 of the NSL provides another problematic example of the Law’s
vague text. The definition for terrorism contains a “catch-all” that criminalizes
“other dangerous activities which seriously jeopardi[z]e public health, safety or
security.”
40
This definition could potentially turn many once legal political
activities into unlawful acts of terrorism.
41
Article 24’s catch-all is especially
concerning because it is ambiguous and does not specify the parameters for an
activity that could, for example, seriously jeopardize security. Although the Law
identifies some other violations in more detail, such as vandalizing government
property under subversion
42
or damaging transportation or public utilities under
terrorism,
43
it still has many listed offenses that can potentially be used to punish
all kinds of activities that are viewed as undermining the central government.
Furthermore, the NSL as written gives authorities broad power to enforce
the Law arbitrarily and quash anti-Communist Party sentiment. Because the
offenses are vaguely defined, critics have argued that the Law will have a
chilling effect on speech.
44
In fact, the first arrest made under the NSL is a good
indicator of its scope: a man was arrested for holding a “Hong Kong
Independence” flag during a protest.
45
Other violations have also made
headlines, including one in which eight individuals were arrested for holding
blank placards during a silent protest.
46
If a violation covers a seemingly
innocent act, such as holding a flag that calls for HK independence
47
or even a
blank placard during a protest,
48
then people will need to think twice about what
they say or how they express their anti-PRC views, or otherwise risk being
arrested for violating the Law.
Second, and perhaps the most controversial article in the Law,
49
is Article
38 of the NSL. This article provides for extraterritorial jurisdiction and
39
. XIANGGANG JIBEN FA art. 27 (H.K.); International Covenant on Civil and Political Rights art. 21,
opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR];
LAWRENCE & MARTIN, supra note 18, at 10–11.
40
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 24(5).
41
. LAWRENCE & MARTIN, supra note 18, at 11.
42
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 22(4).
43
. Id. at art. 24(3).
44
. Elegant, supra note 34; Wu & Yu, supra note 1.
45
. Hong Kong Police Force (@hkpoliceforce), TWITTER (June 30, 2020, 10:38 PM), https://twitter.com/
hkpoliceforce/status/1278201222457987073; see Hernández, supra note 33.
46
. Tom Grundy, Security Law: Hong Kong Police Arrest 8 at ‘Blank Placard’ Silent Protest, H.K. FREE
PRESS (July 6, 2020, 9:57 PM), https://hongkongfp.com/2020/07/06/security-law-hong-kong-police-arrest-8-at-
blank-placard-silent-protest.
47
. See Hong Kong Police Force, supra note 45.
48
. See Grundy, supra note 46.
49
. Cook, supra note 35.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 169
criminalizes any individual who violates the NSL outside of HK’s territory.
50
While the concept of extraterritorial jurisdiction is not completely foreign in the
international community, HK’s law deviates from the norm and differs from that
of other countries. For example, Article 38 claims that the Law applies to HK
residents and non-residents alike, whereas the United States
51
and UK
52
claim
some sort of extraterritorial jurisdiction only over its citizens or residents who
are considered as fugitives or have committed certain offenses.
53
In practice, the
PRC has already issued arrest warrants under the purview of Article 38 for pro-
democracy activists outside the city.
54
One of these arrest warrants was for U.S.
citizen Samuel Chu, who manages a group that advocates for HK democracy.
55
Third, the NSL infringes on the right to a fair trial, at least as understood
by Westerners. This right is articulated in Article 14 of the ICCPR, which
provides that all people are equal and “presumed innocent until proven guilty”
before “a competent, independent and impartial tribunal established by law.”
56
Since the British-Chinese handover, HK has been rather successful in upholding
this concept under its legal system. The city’s success is due, at least in part, to
HK’s independent judiciary and common law system by “providing a secure
environment for individuals and organi[z]ations and a level playing field for
business.”
57
Accordingly, HK has demonstrated an ability to provide fair trials
under its common law system.
58
But the NSL arguably undermines HK’s legal system because it gives the
PRC broad power and authority to choose when and how to enforce its
interpretation of the Law. Although the NSL states that the ICCPR
59
and HK
procedural law will be upheld during judicial proceedings,
60
that likely will not
50
. “This Law shall apply to offen[s]es under this Law committed against the Hong Kong Special
Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”
Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 38.
51
. “The United States exercises extraterritorial jurisdiction for the arrest and removal therefrom to the
United States of any citizen or national of the United States who is a fugitive.” 18 U.S.C. § 3042.
52
. The United Kingdom has also claimed extraterritorial jurisdiction on its own “nationals and residents
who commit certain violent and sexual offences outside the UK.” Policy Paper: Extraterritorial Jurisdiction
Factsheet, U.K. GOV’T: HOME OFFICE, https://www.gov.uk/government/publications/domestic-abuse-bill-2020-
factsheets/extraterritorial-jurisdiction-factsheet (last updated July 28, 2021).
53
. See Elegant, supra note 34.
54
. Eric Baculinao & Adela Suliman, Hong Kong Issues Arrest Warrant for U.S. Citizen Under New
National Security Law, NBC NEWS (Aug. 1, 2020, 6:19 AM), https://www.nbcnews.com/news/world/hong-
kong-issues-arrest-warrant-u-s-citizen-under-new-n1235574.
55
. Id.
56
. ICCPR, supra note 39, at 176.
57
. The Rule of Law: The Legal System, GOVHK, https://www.info.gov.hk/info/sar5/elaw_1.htm (last
visited Jan. 3, 2022).
58
. See GOV’T OF H.K., HONG KONG: THE FACTS LEGAL SYSTEM 1 (2019), https://www.gov.hk/en/about/
abouthk/factsheets/docs/legal_system.pdf.
59
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 4.
60
. Id. at arts. 5, 41; See also XIANGGANG JIBEN FA art. 39 (H.K.) (upholding the ICCPR and ensuring that
its provisions do not contravene Hong Kong laws).
170 HASTINGS LAW JOURNAL Vol. 73:1
be followed in practice. The body responsible for overseeing the Law’s
implementation in HK “shall be under the supervision of and accountable to the
[central government].”
61
Likewise, President Xi Jinping oversees the central
government and is not bound by HK procedural law.
62
In addition, the Office for
Safeguarding National Security is established by the central government and
works under the PRC’s direction.
63
The Office is not subject to HK’s
jurisdiction, and its employees are immune to HK laws.
64
Therefore, a criminal
suspect could be tried under a PRC court applying Chinese law, rather than HK
law, and the HK government would not be able to intervene on the matter.
65
The Chinese legal system is problematic and results in unfair trials in the
PRC. While HK exercises a rule of law that “promote[s] basic principles such
as the supremacy of law, legal accountability, judicial independence, and fair
treatment,” the PRC implements a rule of law that is superseded by the will of
the Communist Party.
66
The alternative “requires that State power must be
subordinate and accountable to . . . the law,” but the PRC does not uphold such
a framework.
67
Rather, the PRC places the will of the Communist Party as the
supreme authority of the land and merely uses its rule of law as a tool to uphold
Party sentiment.
68
For these reasons, Chinese judges are subordinate to the
central government
69
and do not have the authority to make independent
decisions apart from the will of the Communist Party.
Unfair trials are bound to occur when Chinese judges fail to pursue
procedural fairness throughout the trial process. Part of the problem in the PRC
arises when the trial proceeding is manipulated to account for outside factors,
61
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 12 (discussing Committee for Safeguarding National Security).
62
. Eleanor Albert, Lindsey Maizland, Beina Xu, The Chinese Communist Party, COUNCIL ON FOREIGN
RELS. (June 23, 2021, 3:00 PM), https://www.cfr.org/backgrounder/chinese-communist-party.
63
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 50.
64
. Id. at art. 60.
65
. Id. at arts. 55–57.
66
. Ronald T. P. Alcala, Eugene (John) Gregory & Shane Reeves, China and the Rule of Law: A
Cautionary Tale for the International Community, JUST SECURITY (June 28, 2018),
https://www.justsecurity.org/58544/china-rule-law-cautionary-tale-international-community.
67
. Id.; cf. Hong Kong Legal System: The Rule of Law, CMTY. LEGAL INFO. CTR.,
https://www.clic.org.hk/en/topics/hkLegalSystem/theRuleOfLaw (last visited Jan. 3, 2022) (stating that “the
rule of law requires that the courts are independent of the Government Executive bodies” and concluding that
“independence is crucial if impartial rulings are to be given in judging the legality of the acts carried out by the
Government.”).
68
. Alcala et al., supra note 66. Kate Allen, Amnesty International UK Director, has concluded that
Chinese “judges are often under political pressure to . . . enforce[e] the rule of the Party, rather than the rule of
law.” Press Release, Amnesty Int’l UK, China: Thousands Sentenced to Death After Unfair Trials (Mar. 22,
2004), https://www.amnesty.org.uk/press-releases/china-thousands-sentenced-death-after-unfair-trials.
69
. Rongjie Lan, A False Promise of Fair Trials: A Case Study of China’s Malleable Criminal Procedure
Law, 27 UCLA PAC. BASIN L.J. 153, 157 (2010).
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 171
such as when judges have been bribed or must appease personal relationships.
70
Although Chinese judges may occasionally exercise fairness and impartiality
during some criminal proceedings, not all judges use such a method every time,
especially when they must also uphold the will of the Communist Party.
Likewise, case studies on Chinese criminal proceedings have shown that judges
use the trial procedure merely as a means to confirm what they have already
decided on beforehand.
71
But fair trials, at least by Western standards, require
judges to use the trial for fact-finding purposes before arriving at a decision.
72
Therefore, unfair trials exist with the PRC’s subjective framework because the
Chinese judicial system favors decisions that further CCP policy regardless of
contrary factual or legal bases.
73
This problem is further exacerbated because NSL violations can result in
the possibility of closed hearings. Article 41 contains a provision that allows
violators of the NSL to be tried in closed hearings when it involves “[s]tate
secrets or public order.”
74
The lack of transparency associated with this
provision is concerning because it fails to provide an opportunity for judicial
review and bars the public from sitting in on the hearings to ensure HK
procedural law is followed. While criminal suspects generally have the right to
a fair trial in an HK court, the NSL gives the PRC authority to try national
security violators in a PRC court where laws can be applied in an arbitrary
manner to uphold Communist Party policy.
C. THE LAW SERIOUSLY UNDERMINES THE CONCEPT OF “ONE COUNTRY, TWO
SYSTEMS” FOR HONG KONG
The NSL’s contentious points undermine the concept of one country, two
systems. The HK government has been implementing, overseeing, and applying
its own laws over the people of HK under the one country, two systems
70
. See id. at 161. Kate Allen has stated that “[t]he Chinese criminal justice system is in no condition to
offer fair trials, impartiality, or justice” because “political interference is possible at every stage of criminal
justice proceedings.” Amnesty Int’l UK, supra note 68.
71
. Rongjie Lan, Assistant Professor at Zhejiang University Guanghua Law School, has analyzed the Yang
Jia murder case, in which Yang Jia was convicted of killing six people in addition to injuring others. Lan, supra
note 69, at 161. He concluded that this case was manipulated to “ensure efficiency and convenience and turn the
trial into a mere formality.” Id. Given the high-profile and complex nature of this case, one would expect the
hearing to take some time for the factfinder to decide the case, but the hearing lasted only an hour. Id. at 169–
70.
72
. Id. at 172.
73
. Hong Kong’s National Security Law: 10 Things You Need to Know, supra note 36 (“Being charged
with a national security crime on the mainland can lead to arbitrary or even secret detention . . . . As is often the
case, detainees held in this way are at great risk of torture and other ill-treatment.”); Amnesty Int’l UK, supra
note 68; see Lan, supra note 69, at 182–83 (concluding that judges “blindly accelerate their trials, going straight
through the required legal proceedings without addressing any point not mandated by existing laws,” and finding
that trials can be manipulated or distorted when Chinese trials lack fairness and transparency).
74
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 41; LAWRENCE & MARTIN, supra note 18, at 15.
172 HASTINGS LAW JOURNAL Vol. 73:1
framework since the British-Chinese handover.
75
However, the HK government
did not take part in drafting the NSL, nor did it choose to impose the NSL over
HK. Rather, the NPC Standing Committee promulgated the NSL over HK
without a formal introduction into LegCo. The Law also enables the PRC to
oversee and manage its operations within the city.
76
Article 12 of the NSL states
that the body responsible for overseeing the NSL’s application is accountable to
the central government,
77
which appears to contravene Article 2 of the HK Basic
Law because the HK government does not have “legislative and independent
judicial power” over the NSL.
78
In addition, the NSL restricts freedom of speech and expression in the city.
HK has enjoyed free speech for decades under the HK Basic Law,
79
and the
people of HK were allowed to freely express their political or anti-government
views before the NSL’s enactment. However, the Law’s passage effectively
ended that freedom overnight,
80
particularly when HK people can be arrested
for holding a flag that calls for HK independence
81
or a blank placard that
indirectly demonstrates their dismay of the central government.
82
The city even
saw a significant decrease in its rank in the World Press Freedom Index, which
is an index that analyzes the degree of freedom given to journalists in 180
countries, including HK.
83
HK’s rank dropped from seventy-three in 2019 to
eighty in 2020.
84
The PRC’s imposition of national security legislation without
a formal introduction into LegCo is an example of how the NSL strips away
HK’s high degree of autonomy. The NSL also prohibits the people of HK from
exercising free speech—a freedom that they once had before the NSL’s
imposition.
Not only did the Law stir political unrest within HK, but it also received
considerable criticism from the international community. Many countries issued
statements against the NSL and urged the PRC to reconsider its decision to
impose this law over HK.
85
The NSL has been found to suppress civil liberties
75
. See XIANGGANG JIBEN FA art. 2 (H.K.) (Hong Kong shall “exercise a high degree of autonomy and
enjoy executive, legislative and independent judicial power”).
76
. LAWRENCE & MARTIN, supra note 18, at 1; Editorial, The End of One Country, Two Systems in Hong
Kong, FIN. TIMES (July 1, 2020, 7:02 PM), https://www.ft.com/content/5d3d7d2e-bba8-11ea-a05d-
efc604854c3f; see infra Section II.B (discussing no right to fair trial under NSL).
77
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 12 (discussing Committee for Safeguarding National Security).
78
. XIANGGANG JIBEN FA art. 2 (H.K.).
79
. XIANGGANG JIBEN FA art. 27 (H.K.).
80
. Wu & Yu, supra note 1.
81
. See Hong Kong Police Force, supra note 45.
82
. See Grundy, supra note 46.
83
. The Index is based on a questionnaire answered by experts in the field on “abuses and acts of violence
against journalists during the period evaluated.” Detailed Methodology, REPS. WITHOUT BORDERS,
https://rsf.org/en/detailed-methodology (last visited Jan. 3, 2022).
84
. Hong Kong, REPS. WITHOUT BORDERS, https://rsf.org/en/hong-kong (last visited Jan. 3, 2022). HK’s
rank has since remained at 80 since 2020. Id.
85
. G7 Foreign Ministers’ Statement on H.K., supra note 8.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 173
and human rights for HK residents, especially when the NSL effectively
prohibits the exercise of free speech, the right to assemble, or the right to a fair
trial.
86
It can also apply to non-HK residents because the PRC claims
extraterritorial jurisdiction under the NSL.
87
In the end, the Law nearly
dismantles HK’s one country, two systems framework.
II. THE UNITED STATES’ RESPONSE TO HONG KONG’S
NATIONAL SECURITY LAW
The United States has played an active role in condemning the NSL since
its inception. The United States initially responded to the Law’s passage by
urging the PRC to reconsider its decision and honor its obligations under the
ICCPR, HK Basic Law, and the Sino-British Joint Declaration.
88
The United
States did so by issuing numerous joint statements with its allies on the NSL in
an attempt to influence the HK situation and condemn the Law.
89
The United
States also took concrete legislative and executive action against HK. The
HKAA and Executive Order 13936 came about under the Trump administration,
while the Biden administration has since followed suit with deferring the
departure of certain HK residents.
A. CONSEQUENCES UNDER THE HONG KONG AUTONOMY ACT
The HKAA imposes penalties on those who take part in eroding the
concept of one country, two systems, while also extending benefits to those
targeted by the NSL. Under the HKAA, the United States is permitted to
sanction individuals and businesses that contribute to the deterioration of HK
autonomy.
90
These sanctions have been described as the toughest yet, especially
as individuals on the receiving end could face property seizures, asset freezes,
and a ban on financial transactions associated with U.S. banks.
91
The United
States has since sanctioned thirty-four Chinese and HK officials under the
HKAA, including HK Chief Executive Carrie Lam.
92
Despite the Chief
86
. Joint Statement on H.K., supra note 9; Joint Statement on the Erosion of Rights in H.K., supra note 9.
87
. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region, art. 38.
88
. Joint Statement on H.K., supra note 9; Statement on NSL, supra note 9; Press Statement, Michael R.
Pompeo, U.S. Sec’y of State, Arrest and Detention of Student Democracy Activists in Hong Kong Under the
National Security Law (Oct. 29, 2020), https://2017-2021.state.gov/arrest-and-detention-of-student-democracy-
activists-in-hong-kong-under-the-national-security-law/index.html.
89
. G7 Foreign Ministers’ Statement on H.K., supra note 8; Joint Statement on H.K., supra note 9; Joint
Statement on the Erosion of Rights in H.K., supra note 9.
90
. Hong Kong Autonomy Act, Pub. L. No. 116-149, §§ 4(6), 5(a), 134 Stat. 663, 668–69 (2020).
91
. Naina Bhardwaj, Hong Kong’s Leader is Being Paid in Cash Due to US Sanctions. Carrie Lam Earns
$56,000 a Month and Says Money is Piling Up at Her House., BUS. INSIDER (Nov. 28, 2020, 9:41 AM),
https://www.businessinsider.com/hk-leader-doesnt-have-bank-account-because-of-us-sanctions-2020-11.
92
. Bureau of E. Asian & Pac. Aff., supra note 10; Press Statement, Morgan Ortagus, Dep’t Spokesperson,
U.S. Dep’t of State, Release of the Hong Kong Autonomy Act Report (Oct. 14, 2020), https://2017-
2021.state.gov/release-of-the-hong-kong-autonomy-act-report/index.html [hereinafter Release of the HKAA].
174 HASTINGS LAW JOURNAL Vol. 73:1
Executive’s nonchalant outlook on the imposition of sanctions against her,
93
it
does not change the seriousness of her predicament. With the interconnectedness
of financial institutions, the Chief Executive is left without access to banking
services, which is a substantial obstacle because she must bring her monthly
income of $56,000 HKD
94
in cash home each month. The HKAA also provides
for HK residents to obtain lawful entry into the United States if they are found
to be persecuted or fear persecution under the Law.
95
Recent Chinese acts that have arguably eroded HK’s high degree of
autonomy have prompted the United States to enact the HKAA. The PRC agreed
to uphold HK’s high degree of autonomy under the Sino-British Joint
Declaration and HK Basic Law, yet the United States has found that the NSL
compromises HK’s autonomy.
96
Although it was initially agreed upon “that
[HK] ‘will be vested with executive, legislative and independent judicial power,
including that of final adjudication,’” the PRC ultimately overstepped its bounds
when the central government took over the NSL’s implementation in HK.
97
The
PRC has likewise eroded HK’s high degree of autonomy when the central
government destroyed the ability of HK people to freely express their views.
98
Because the NSL’s text is vaguely worded and violations may result in up to life
imprisonment, people should be concerned about how they express their anti-
PRC sentiment. In fact, two prominent political activists and pro-Democracy
leaders stepped down or fled HK due to their fear of persecution for violating
the NSL.
99
The United States has a legal duty to play an active role in maintaining one
country, two systems under the United States-Hong Kong Policy Act of 1992
and the Hong Kong Human Rights and Democracy Act of 2019 (HKHRDA).
Part of this legal duty entails supporting HK’s democratic freedoms, human
rights, and high degree of autonomy.
100
Because supporting “democratization is
a fundamental principle of [U.S.] foreign policy,”
101
the United States must
93
. Hong Kong International Business Channel, Exclusive: Carrie Lam Admits Inconvenience of US
Sanctions, FACEBOOK (Nov. 27, 2020), https://www.facebook.com/hkibcnews/videos/484173425894280.
94
. Hong Kong Chief Executive Carrie Lam earns $672,000 per year. Bhardwaj, supra note 91.
95
. Hong Kong Autonomy Act § 4(6).
96
. Release of the HKAA, supra note 92; Hong Kong Autonomy Act § 3.
97
. Hong Kong Autonomy Act § 3(8); Sino-British Joint Declaration, supra note 3, at art. 3(3); see
XIANGGANG JIBEN FA arts. 2, 16–18, 19, 22 (H.K.).
98
. Hong Kong Autonomy Act § 3(12); Sino-British Joint Declaration, supra note 3, at art. 3(3); see
XIANGGANG JIBEN FA arts. 4, 26–34, 39 (H.K.).
99
. Joshua Wong (@joshuawongcf), TWITTER (June 29, 2020, 7:53 PM), https://twitter.com/
joshuawongcf/status/1277797447822172162; Nathan Law (@nathanlawkc), TWITTER (June 29, 2020, 8:45
PM), https://twitter.com/nathanlawkc/status/1277810566917218310; Hong Kong’s National Security Law: 10
Things You Need to Know, supra note 36.
100
. United States-Hong Kong Policy Act of 1992, 22 U.S.C. §§ 5701, 5711(1) (1992); Hong Kong Human
Rights and Democracy Act of 2019, Pub. L. No. 116-76 § 3(1), 133 Stat. 1161, 1162 (2019).
101
. United States-Hong Kong Policy Act of 1992, 22 U.S.C. § 5701(5).
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 175
actively participate in upholding HK autonomy and democracy
102
by enacting
legislation or otherwise implementing a foreign policy that is consistent with
upholding Hong Kong autonomy. Therefore, the United States has fulfilled its
legal duty by enacting the HKAA because it punishes those who contribute to
the erosion of HK autonomy while providing an emigration route for HK
residents to escape oppression.
B. ELIMINATION OF HONG KONG’S SPECIAL TREATMENT UNDER EXECUTIVE
ORDER 13936
Additionally, President Trump issued Executive Order 13936 in response
to the NSL’s imposition on the same day that the HKAA
103
was enacted. While
exercising his executive power, President Trump determined that HK “is no
longer sufficiently autonomous to justify differential treatment in relation to the
[PRC].”
104
He cited the PRC’s failure to uphold HK’s autonomy—a promise
that the PRC made to the UK under the Sino-British Joint Declaration—to justify
his executive order.
105
The PRC went one step too far in dismantling one
country, two systems when it sidestepped HK’s legislative process, promulgated
national security legislation over the city, and gave itself broad power to
implement the NSL as it sees fit. Because HK is no longer sufficiently
autonomous as the U.S. originally expected when the United States-Hong Kong
Policy Act of 1992 was enacted, the U.S. has found that HK should be treated in
the same manner as that of the PRC.
106
As a result, President Trump has
eliminated HK’s preferential treatment, the U.S.-HK extradition treaty, and
military training in the city.
107
Moreover, the new administration under President
Biden extended this executive order because the PRC continues to undermine
HK’s autonomy.
108
Executive Order 13936 has mostly been a symbolic move to date. Some of
the Order’s short-term impact calls for eliminating preferential treatment
towards HK passport holders and trading privileges with the city.
109
Similarly,
defense and dual-use technology exports to the territory have been impacted
102
. The United States also has a duty to uphold “Hong Kong’s confidence and prosperity, Hong Kong’s
role as an international financial center, and the mutually beneficial ties between” Hong Kong and the United
States, which the Hong Kong Autonomy Act also appears to do. Id. § 5711(1). The Hong Kong Human Rights
and Democracy Act affirms the policies set forth in the United States-Hong Kong Policy Act, particularly as it
relates to upholding Hong Kong’s autonomy. See Hong Kong Human Rights and Democracy Act of 2019 § 3.
103
. The Hong Kong Autonomy Act was enacted on July 14, 2020, which is the same day that President
Trump issued Executive Order 13936. See Exec. Order No. 13936, 85 Fed. Reg. 43,413, 43,413 (July 14, 2020).
104
. Id. The United States treated Hong Kong differently than mainland China because of the “one country,
two systems” framework for Hong Kong. See United States-Hong Kong Policy Act of 1992 § 5701.
105
. Exec. Order No. 13936, 85 Fed. Reg. at 43,413.
106
. Id.
107
. Id. at 43,414.
108
. Continuation of the National Emergency with Respect to Hong Kong, 86 Fed. Reg. 36479, 36479 (July
9, 2021).
109
. Exec. Order No. 13936, 85 Fed. Reg. at 43,413.
176 HASTINGS LAW JOURNAL Vol. 73:1
because the United States no longer transports such technology to the region.
110
The United States has also imposed sanctions on 14 Chinese officials in charge
of implementing the NSL because they have been deemed as contributing to the
deterioration of HK’s promised autonomy.
111
However, the executive order has the potential to negatively impact the
United States’ standing in the international community as well as its relationship
with HK. For example, the U.S. Customs and Border Protection (CBP)
responded to the Order by issuing a notice requiring imports from HK to be
marked with “China” as their origin.
112
Perhaps this move is not as drastic as it
seems because HK imports accounted for only thirteen percent of total trade
between the United States and HK in 2019.
113
In other words, HK does not focus
its efforts on providing goods to the United States.
114
Nevertheless, the HK
government strongly objected to the CBP’s notice as a likely violation of WTO
rules because the United States has disregarded HK’s status as a separate and
distinct entity from the PRC.
115
HK initiated a complaint against the U.S. shortly
after for its origin marking requirements.
116
Not only does such a move worsen
already tense relations between the United States, HK, and the PRC, but the
WTO complaint also draws international attention away from the NSL and shifts
it to the United States.
C. PRESIDENT BIDEN’S DIRECTIVE TO DEFER THE DEPARTURE OF HK
RESIDENTS
While President Biden has largely supported his predecessor’s foreign
policy towards HK—namely, providing an update under the HKAA and
extending Executive Order 13936 by an additional year—he has since taken it a
step further and prepared an avenue for HK residents already in the United States
to remain in the country for another eighteen months.
117
President Biden has
stated that “[t]he [United States] is committed to a foreign policy that unites our
democratic values with our foreign policy goals, which is centered on the
defense of democracy and the promotion of human rights around the world.”
118
110
. Id.
111
. Designations of NPC Officials, supra note 10.
112
. Country of Origin Marking of Products of Hong Kong, 85 Fed. Reg. 48,551, 48,551 (Aug. 11, 2020).
113
. United States exports to Hong Kong totaled $30.8 billion, whereas Hong Kong imports totaled $4.7
billion. Hong Kong, OFF. OF THE U.S. TRADE REPRESENTATIVE, https://ustr.gov/countries-regions/china-
mongolia-taiwan/hong-kong (last visited Jan. 3, 2022).
114
. Hong Kong mainly provides services to the United States. See id.
115
. Press Release, Gov’t of H.K., HKSARG Strongly Objects to US’ New Rule on Origin Marking of
Hong Kong Products (Aug. 11, 2020), https://www.info.gov.hk/gia/general/202008/11/P2020081100732.htm.
116
. Hong Kong, China Initiates Dispute Complaint Against US Origin Marking Requirements, WORLD
TRADE ORG. (Nov. 3, 2020), https://www.wto.org/english/news_e/news20_e/ds597rfc_03nov20_e.htm.
117
. Memorandum on Deferred Enforced Departure for Certain Hong Kong Residents, 2021 DAILY COMP.
PRES. DOC. 641 (Aug. 5, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/
08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents.
118
. Id.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 177
The PRC’s actions over HK runs counter to U.S. foreign policy. Since the
NSL’s imposition, the HK government has stifled the voices of over 100
opposition politicians, activists, and protesters by taking them into custody.
119
More than 10,000 individuals have also been arrested for participating in anti-
government protests.
120
Because the PRC has significantly eroded the rights and
freedoms that the people of HK once enjoyed, President Biden concluded that
the deferred departure of HK residents “is in the foreign policy interest of the
[United States].”
121
III. THE UNITED STATES’ RESPONSE IS UNLIKELY TO POSITIVELY SHAPE
CHINA’S IMPLEMENTATION OF HONG KONG’S NATIONAL SECURITY LAW
Although the U.S. has condemned the PRC for failing to uphold HK’s high
degree of autonomy under the Sino-British Joint Declaration and Basic Law,
these largely symbolic gestures will likely prove futile in positively shaping the
NSL’s implementation. The PRC is likely to characterize the U.S. response as
an interference with its sovereignty over HK because the United States has been
critical of the NSL
122
and expressed its criticism by enacting legislation and
issuing an executive order against HK.
123
Given how the PRC strongly values
state sovereignty and the concept of non-interference on internal affairs,
124
the
PRC is unlikely to react positively to the U.S. response.
The PRC frequently emphasizes the importance of non-interference on
internal affairs as part of its exercise of state sovereignty. Not only does the PRC
cite to non-interference,
125
but it also demonstrates strict adherence to its
exercise of state sovereignty. The PRC has abided by this principle since it
initiated the Five Principles of Peaceful Co-Existence in 1954.
126
The PRC is
particularly firm on non-interference, especially when it relates to its “exclusive
jurisdiction over a territory and the permanent population therein” and the right
119
. Id.
120
. Id.
121
. Id.
122
. G7 Foreign Ministers’ Statement on H.K., supra note 8; Statement on NSL, supra note 9.
123
. H.K. Autonomy Act, Pub. L. No. 116-149, §§ 4(6), 5(a), 134 Stat. 663, 668 (2020); Exec. Order No.
13936, 85 Fed. Reg. at 43,413.
124
. JUNWU PAN, TOWARD A NEW FRAMEWORK FOR PEACEFUL SETTLEMENT OF CHINA’S TERRITORIAL AND
BOUNDARY DISPUTES 80 (2009).
125
. Foreign Minister Tang Jiaxuan at the 54th Session of the UN General Assembly, XINHUA (Sept. 22,
1999), https://www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/3604_665547/t18058.shtml; ALLEN
CARLSON, NAT’L COMM. ON U.S.-CHINA RELS., PROTECTING SOVEREIGNTY, ACCEPTING INTERVENTION: THE
DILEMMA OF CHINESE FOREIGN RELATIONS IN THE 1990S i–ii (2002), https://www.ncuscr.org/sites/default/
files/page_attachments/Protecting-Sovereignty-Accepting-Intervention.pdf; Chinese FM Stresses Non-
Interference in Other Countries’ Internal Affairs, XINHUA (Sept. 2, 2020, 11:26 AM),
http://www.xinhuanet.com/english/2020-09/02/c_139336538.htm.
126
. The Five Principles of Peaceful Co-Existence include mutual respect for “territorial integrity and
sovereignty . . . , mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual
benefit, . . . and peaceful co-existence.” China’s Initiation of the Five Principles of Peaceful Co-Existence,
MINISTRY OF FOREIGN AFF. OF THE PRC, https://www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/
3604_665547/t18053.shtml (last visited Jan. 3, 2022).
178 HASTINGS LAW JOURNAL Vol. 73:1
to non-interference on internal affairs.
127
The PRC does so by disapproving acts
that it views as an interference in its internal affairs.
128
In fact, the central government did exactly that when the United States
enacted the HKHRDA. The PRC vigorously condemned this enactment and the
United States’ overall support for HK democracy and human rights
129
as a
“severe interference in HK affairs, which are [the PRC]’s internal affairs,” and
went on to characterize U.S. intentions as “malicious and hegemonic.”
130
The
central government even threatened to take countermeasures if the United States
continued down this path, stating that “[t]he [United States’] attempts are bound
to fail.”
131
This statement appears to be true today because the PRC proceeded
down its path of ignoring U.S. efforts and promulgated the NSL shortly after,
arguably to the detriment of HK autonomy, despite calls for the PRC to uphold
the city’s autonomy.
The central government has similarly condemned the HKAA, Executive
Order 13936, and the deferral of HK residents currently in the United States by
issuing statements on the U.S. response, and the PRC certainly views the United
States as interfering with its sovereignty over HK. The PRC has “expressed
strong indignation and protested against” U.S. sanctions,
132
and has criticized
President Biden’s decision to extend safe haven to HK residents.
133
The PRC
also “firmly opposes any attempt by the [United States] to meddle with HK
affairs under the pretext of the joint declaration.”
134
But the PRC has not been
the only one to condemn the U.S. response. The HK government at one point
127
. PAN, supra note 124.
128
. Foreign Ministry Spokesperson Geng Shuang’s Regular Press Conference on November 20, 2019,
MINISTRY OF FOREIGN AFF. OF THE PRC (Nov. 20, 2019), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/
s2510_665401/t1717513.shtml (finding the Hong Kong Human Rights and Democracy Act as an interference
on China’s internal affairs and a “serious violation of international law and basic norms governing international
relations”).
129
. See Press Release, The White House, Statement on Signing the Hong Kong Human Rights and
Democracy Act of 2019 (Nov. 27, 2019), https://www.govinfo.gov/content/pkg/DCPD-201900832/pdf/DCPD-
201900832.pdf.
130
. Statement of the Ministry of Foreign Affairs, MINISTRY OF FOREIGN AFF. OF THE PRC (Nov. 28, 2019),
https://www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/t1719774.shtml [hereinafter Statement of the
Ministry of Foreign Affairs].
131
. Id.
132
. Spokesperson of the Commissioner’s Office: US Sanctions Will Only be Self-Defeating, MINISTRY OF
FOREIGN AFF. OF CHINA IN H.K. (Aug. 8, 2020), http://www.fmcoprc.gov.hk/eng/gsxw/t1804993.htm
[hereinafter US Sanctions Will Only be Self-Defeating].
133
. Remarks, Hua Chunying, Ministry of Foreign Aff. of the PRC, Foreign Ministry Spokesperson Hua
Chunying’s Remarks on the US President’s Signing of the Hong Kong-related Memorandum (Aug. 8, 2021),
https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1898163.shtml.
134
. The Spokesperson of the Commissioner’s Office Strongly Disapproves and Firmly Opposes Groundless
Accusations by the US Side Against the National Security Law, MINISTRY OF FOREIGN AFF. OF CHINA IN H.K
(July 6, 2020), http://www.fmcoprc.gov.hk/eng/gsxw/t1795630.htm [hereinafter Commissioner’s Office
Disapproves US Accusations].
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 179
characterized the U.S. sanctions as a “blatant and barbaric interference in the
internal affairs of the [PRC].”
135
Not only has the central government condemned the U.S. response, but it
has presumably ignored U.S. efforts and taken further steps to erode HK’s
autonomy. Nearly one year after the NSL’s imposition, LegCo passed a bill that
significantly dilutes the HK electoral process by decreasing the number of seats
that the people of HK directly elect while increasing the number of seats that
will be selected by the Communist Party.
136
Doing so, according to Chief
Executive Carrie Lam, will “restore peace and prosperity in [HK]”
137
and plug
the loopholes in HK’s electoral system that allowed for “anti-China
disruptors . . . to enter [HK]’s power structure in recent years.”
138
Despite
receiving much criticism from the U.S. and others in response to the new bill,
139
the Chinese government yet again relied on the principle of non-interference on
internal affairs to defend the bill.
140
As with the PRC’s approach towards the HKHRDA, the PRC has ignored
U.S. actions while continuing to exercise its sovereignty over HK as it sees fit.
The central government has stated that all efforts by the United States will prove
135
. Press Release, Gov’t of H.K., HKSAR Government Calls So-Called US Sanctions Shameless and
Despicable (Aug. 8, 2020), https://www.info.gov.hk/gia/general/202008/08/P2020080800317.htm (“the latest
US Government measure represents blatant and barbaric interference in the internal affairs of the People’s
Republic of China.”).
136
. Improving Electoral System (Consolidated Amendments) Bill 2021, H.K. SPECIAL ADMIN. REGION,
https://www.cmab.gov.hk/improvement/en/bill/index.html (last visited Jan. 3, 2022); Iain Marlow & Kari Soo
Lindberg, China Abandons 24-Year Experiment with Open H.K. Elections, BLOOMBERG (Mar. 5, 2021, 9:23
PM), https://www.bloomberg.com/news/articles/2021-03-05/china-abandons-24-year-experiment-with-open-
hong-kong-elections.
137
. Hong Kong Legislature Passes Amendments to Electoral Laws, XINHUA (May 27, 2021, 9:52 PM),
http://www.xinhuanet.com/english/2021-05/27/c_139973791.htm.
138
. Id.; see Press Release, Gov’t of H.K., CE welcomes passage of Improving Electoral System
(Consolidated Amendments) Bill 2021 (May 27, 2021, 4:25 PM), https://www.info.gov.hk/gia/general/
202105/27/P2021052700536.htm.
139
. Press Statement, Antony J. Blinken, U.S. Sec’y of State, Denial of Democracy in Hong Kong (May 27,
2021), https://www.state.gov/denial-of-democracy-in-hong-kong (denouncing LegCo’s May 27 bill passage
which alters the LegCo’s and Election Commission’s composition that “severely constrains people in Hong
Kong from meaningfully participating in their own governance and having their voices heard”); Press Statement,
Antony J. Blinken, U.S. Sec’y of State, Assault on Democracy in Hong Kong (Mar. 11, 2021),
https://www.state.gov/assault-on-democracy-in-hong-kong (criticizing the “[NPC’s] decision to unilaterally
change HK’s electoral system” and “call[ing] on the PRC to uphold its international obligations and
commitments and to act consistently with [HK]’s Basic Law”); Media Note, Office of the Spokesperson, G7
Statement on Hong Kong Electoral Changes (Mar. 12, 2021), https://www.state.gov/g7-statement-on-hong-
kong-electoral-changes (decrying the HK electoral changes that will stifle dissenting voices in HK and further
“undermine[ HK]’s high degree of autonomy under the ‘One Country, Two Systems’ principle”). Moreover, the
UK declared that the PRC is “in a state of ongoing non-compliance with the Sino-British Joint Declaration.”
Dominic Raab, U.K. Foreign Sec’y of State, Radical Changes to Hong Kong’s Electoral System: Foreign
Secretary’s Statement (Mar. 13, 2021), https://www.gov.uk/government/news/foreign-secretary-statement-on-
radical-changes-to-hong-kongs-electoral-system.
140
. Zhang Xiaoming, deputy director of the Hong Kong and Macao Affairs Office of the State Council,
stated that “Hong Kong affairs are purely China’s internal affairs; no foreign country can make any irresponsible
remarks” in response to the bill’s criticism. Senior Chinese Officials Refute US Condemnation on HK Electoral
Reform, GLOB. TIMES (Mar. 12, 2021, 11:47 AM), https://www.globaltimes.cn/page/202103/
1218182.shtml.
180 HASTINGS LAW JOURNAL Vol. 73:1
futile,
141
and that has been the case here with the current U.S. approach because
the PRC eventually passed Bill 2021 on Improving HK’s Electoral System.
Based on the PRC’s view on state sovereignty, the U.S. response is unlikely to
positively shape the PRC’s implementation of the NSL.
IV. ALTHOUGH UNLIKELY TO MAKE POSITIVE CHANGES, THE UNITED STATES
STILL HAS A DUTY TO SPEAK OUT AND TAKE
CONCRETE ACTION AGAINST THE LAW
The United States, a strong proponent of civil liberties and human rights,
is generally very outspoken on foreign matters that relate to the erosion of civil
liberties and human rights. As part of its National Security Strategy, the Trump
administration has emphasized the importance of human rights as a basis for
legitimate national sovereignty.
142
President Trump has stated that sovereign
nations must allow their people to “take ownership of the future and control their
own destiny.”
143
Therefore, governments have a moral duty to uphold and
respect their citizens’ interests because it adds to their legitimacy.
144
Likewise,
under the current administration, President Biden is dedicated to defending
democracy and promoting human rights around the world.
145
To this end, the
United States has committed itself to protecting human rights and democracy at
home and abroad.
146
As a result, the United States will naturally speak out and take concrete
action against human rights abuses. This duty arises particularly when it relates
to upholding freedom of speech, assembly, religion, and the right to hold
democratic elections.
147
The United States has made it a priority to support and
defend these basic rights even in its foreign policy goals.
148
As illustrated by the
141
. While referencing the United States’ response towards passage of the Hong Kong National Security
Law, the spokesperson of the Commissioner’s Office of the Ministry of Foreign Affairs in the PRC said, “[a]ny
US sanction is futile.” US Sanctions Will Only be Self-Defeating, supra note 132.
142
. Promoting Human Rights is Essential to an ‘America First’ Vision, THE WHITE HOUSE (Mar. 12, 2018),
https://trumpwhitehouse.archives.gov/articles/promoting-human-rights-essential-america-first-vision-2.
143
. Remarks by President Trump to the 72nd Session of the United Nations General Assembly, U.S.
EMBASSY AND CONSULATES IN BRAZ. (Sept. 19, 2017), https://br.usembassy.gov/remarks-president-trump-
72nd-session-united-nations-general-assembly [hereinafter Remarks by President Trump].
144
. Id.; see Memorandum on Deferred Enforced Departure for Certain Hong Kong Residents, supra note
117.
145
. Memorandum on Deferred Enforced Departure for Certain Hong Kong Residents, supra note 117.
146
. Remarks by President Trump, supra note 143; Memorandum on Deferred Enforced Departure for
Certain Hong Kong Residents, supra note 117.
147
. Unalienable Rights and the Securing of Freedom, Address at the National Constitution Center, U.S.
DEP’T OF STATE (July 16, 2020), https://il.usembassy.gov/unalienable-rights-and-the-securing-of-freedom
[hereinafter Unalienable Rights and the Securing of Freedom].
148
. Remarks by President Trump, supra note 143; Michael R. Pompeo, U.S. Sec’y of State, Remarks on
Promoting and Protecting Human Rights: A Re-Dedication to the Universal Declaration of Human Rights, U.S.
DEP’T OF STATE (Sept. 23, 2020), https://2017-2021.state.gov/promoting-and-protecting-human-rights-a-re-
dedication-to-the-universal-declaration-of-human-rights/index.html; Unalienable Rights and the Securing of
Freedom, supra note 147; Michael R. Pompeo, Unalienable Rights and U.S. Foreign Policy, WALL ST. J. (July
7, 2019, 3:07 PM), https://www.wsj.com/articles/unalienable-rights-and-u-s-foreign-policy-11562526448;
Memorandum on Deferred Enforced Departure for Certain Hong Kong Residents, supra note 117.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 181
U.S. response to the NSL,
149
the United States has made it known that the Law
erodes the civil liberties and human rights that the people of HK have embraced
for decades.
President Trump’s National Security Strategy lays out a general framework
to “support the dignity of individuals”
150
and fulfill its moral duty to uphold
human rights and civil liberties abroad. First, the United States will issue
statements or press releases condemning the violator and the act alleged to
violate human rights.
151
Second, the United States may decide to act by turning
to “diplomacy, sanctions, and other tools to isolate states and leaders . . . whose
actions run contrary to [U.S.] values.”
152
In practice, the United States has
implemented this policy consistently in recent years,
153
at least with a particular
focus towards Xinjiang in China,
154
Iran,
155
Venezuela,
156
and Cuba.
157
Former
Secretary of State Mike Pompeo, while citing human rights abuses, frequently
criticized all four governments in strong terms.
158
Furthermore, the United States
has implemented sanctions against these same countries for their human rights
abuses.
159
149
. Hong Kong Autonomy Act §§ 4(6), 5(a); Memorandum on Deferred Enforced Departure for Certain
Hong Kong Residents, supra note 117.
150
. DONALD J. TRUMP, NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 42 (2017),
https://trumpwhitehouse.archives.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf.
151
. See id.
152
. Id.
153
. Michael R. Pompeo, U.S. Sec’y of State, Remarks on the Release of the 2019 Country Reports on
Human Rights Practices, U.S. DEP’T OF STATE (Mar. 11, 2020), https://2017-2021.state.gov/secretary-michael-
r-pompeo-on-the-release-of-the-2019-country-reports-on-human-rights-practices/index.html [hereinafter
Remarks on the Release of the 2019 Country Reports on Human Rights Practices]; see Remarks by President
Trump, supra note 143.
154
. Karen Pierce, a U.K. Permanent Representative, delivered a joint statement on behalf of 23 countries,
including the United States, to condemn China’s human rights abuses in Xinjiang. Karen Pierce, U.K. Permanent
Representative, Joint Statement on Xinjiang at the Third Committee Dialogue of the Committee for the
Elimination of Racial Discrimination, U.S. MISSION TO THE UNITED NATIONS (Oct. 29, 2019),
https://usun.usmission.gov/joint-statement-delivered-by-uk-rep-to-un-on-xinjiang-at-the-third-committee-
dialogue-of-the-committee-for-the-elimination-of-racial-discrimination.
155
. Michael R. Pompeo, U.S. Sec’y of State, Human Rights and the Iranian Regime, Address at the Dean
Acheson Auditorium, U.S. DEP’T OF STATE (Dec. 19, 2019), https://2017-2021.state.gov/human-rights-and-the-
iranian-regime/index.html.
156
. Press Statement, Michael R. Pompeo, U.S. Sec’y of State, The United States Condemns Maduro’s
Latest Step to Rig the Next Venezuelan Election (June 15, 2020), https://cl.usembassy.gov/the-united-states-
condemns-maduros-latest-step-to-rig-the-next-venezuelan-election.
157
. MARK P. SULLIVAN, CONG. RSCH. SERV., IF10045, CUBA: U.S. POLICY OVERVIEW 1 (Updated Oct. 29,
2021), https://fas.org/sgp/crs/row/IF10045.pdf.
158
. Remarks on the Release of the 2019 Country Reports on Human Rights Practices, supra note 153.
159
. SULLIVAN, supra note 157, at 1–2; Media Note, Off. of the Spokesperson, U.S. Dep’t of State, The
United States Sanctions Nicolas Maduro Guerra, U.S. DEP’T OF STATE (June 28, 2019),
https://uy.usembassy.gov/the-united-states-sanctions-nicolas-maduro-guerra (sanctioning Nicolas Maduro’s son
for role in the Maduro regime and condemning regime for oppression of Venezuelans); Press Statement, Michael
R. Pompeo, U.S. Sec’y of State, Major New Human Rights-Related Listings and Accompanying Sanctions on
Iran (Sept. 24, 2020), https://ir.usembassy.gov/major-new-human-rights-related-listings-and-accompanying-
sanctions-on-iran; Press Statement, Michael R. Pompeo, U.S. Sec’y of State, The United States Imposes
Sanctions and Visa Restrictions in Response to the Ongoing Human Rights Violations and Abuses in Xinjiang
182 HASTINGS LAW JOURNAL Vol. 73:1
Unsurprisingly, the United States has responded to the HK situation in a
similar manner to that of Xinjiang, Iran, Venezuela, and Cuba. The United States
first spoke out and condemned the PRC for implementing national security
legislation over HK because its enactment allegedly erodes civil liberties and
human rights.
160
The United States also took concrete action by sanctioning
Chinese and HK officials
161
and eliminating HK’s preferential treatment by
repealing legislation and bilateral agreements.
162
Therefore, the U.S. response
towards HK remains consistent with its foreign policy towards human rights
violators.
V. BY SHINING A SPOTLIGHT ON HONG KONG, THE CURRENT UNITED STATES
RESPONSE MAY FURTHER DETERIORATE ONE COUNTRY, TWO SYSTEMS
UNDER THE NATIONAL SECURITY LAW
Although consistent with its foreign policy goals towards upholding human
rights, the current U.S. response fails to prevent the further deterioration of one
country, two systems in HK. The United States may inadvertently pave the way
for the PRC to step in and take greater reins over HK because it has eliminated
HK’s special treatment. Additionally, the PRC may decide to respond with a
heavy hand on its implementation of the NSL as a statement to the international
community that the country will not tolerate “bullies” if the United States
continues to place the situation in HK at the forefront of its foreign policy goals
and in the news.
A. BY INFLUENCING THE INTERNATIONAL PERCEPTION OF HONG KONG, THE
UNITED STATES PAVES THE WAY FOR THE PRC TO HAVE A TIGHTER GRASP
OVER THE CITY
The United States has distanced itself from HK by eliminating its special
treatment under Executive Order 13936. Under this order, the United States no
longer grants HK special trading privileges nor preferential visa treatment for
HK residents when compared to the PRC.
163
The United States and HK had a
relatively free flow of trade and ideas due to its special treatment, which has
contributed to the city’s success as a global financial center.
164
But with the
elimination of HK’s preferential treatment, the United States no longer treats
(July 9, 2020), https://2017-2021.state.gov/the-united-states-imposes-sanctions-and-visa-restrictions-in-
response-to-the-ongoing-human-rights-violations-and-abuses-in-xinjiang/index.html.
160
. G7 Foreign Ministers’ Statement on H.K., supra note 8; Statement on NSL, supra note 9; Joint
Statement on HK, supra note 9.
161
. Designations of NPC Officials, supra note 10; Bureau of E. Asian & Pac. Aff., supra note 10.
162
. Exec. Order No. 13936, 85 Fed. Reg. at 43,414.
163
. Id. at 43,413; see Naomi Xu Elegant, Hong Kong Passport Holders Used to Get Special Perks in the
U.S. Not Anymore, FORTUNE (July 15, 2020, 2:26 AM), https://fortune.com/2020/07/15/trump-hong-kong-
passport.
164
. William Alan Reinsch, Carlota Martinez-Don, Patrick Saumell, Hong Kong’s Special Status: What’s
Happening and What’s Next, CTR. FOR STRATEGIC & INT’L STUD. (June 15, 2020), https://www.csis.org/
analysis/hong-kongs-special-status-whats-happening-and-whats-next.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 183
HK differently nor views the city as a separate entity apart from the PRC.
165
Thus, the U.S. response creates distance between itself and HK.
Given the United States’ far-reaching influence in the international
community, it can ultimately change the international perception of HK as a city
that is merely part of the PRC rather than as a separate entity if other countries
follow suit. In fact, other countries have already implemented changes to their
foreign policy towards HK—just not to the extent that the United States has. For
example, Australia,
166
Canada,
167
and the UK
168
have all suspended their
extradition treaties with HK and implemented new visa measures for the people
of HK to emigrate. Under this more limited approach, Australia, Canada, and
the UK have provided the people of HK the opportunity to escape an oppressive
regime. As for sanctions, the European Union has indicated a desire to impose
sanctions on the PRC because of the HK situation
169
but has yet to implement
any substantive measures against the PRC. Nevertheless, responses from
Australia, Canada, and the UK have yet to seriously undermine one country, two
systems because they are searching for options to support HK and its people,
whereas the U.S. response has been more drastic.
170
On the other hand, the U.S. response leads to a fallout that will seriously
undermine one country, two systems. Apart from targeted sanctions on Chinese
165
. Trevor G. Schmitt, Soo-Mi Rhee & John P. Barker, The End of Hong Kong’s “Preferential
Treatment”: US Imposes Similar Export Controls as on China and Introduces Sanctions, ARNOLD & PORTER
(Aug. 4, 2020), https://www.arnoldporter.com/en/perspectives/blogs/enforcement-edge/2020/08/the-end-of-
hks-preferential-treatment; Michelle Toh & Laura He, The United States is Treating Hong Kong as Mainland
China. Business is Starting to do the Same, CNN BUS. (July 16, 2020, 12:50 AM), https://www.cnn.com/
2020/07/15/business/hong-kong-special-trade-status-us-intl-hnk/index.html.
166
. Hong Kong Brief, AUSTL. GOV’T DEP’T OF FOREIGN AFF. & TRADE, https://www.dfat.gov.au/geo/
hong-kong/Pages/hong-kong-brief (last visited Jan. 3, 2022).
167
. Press Release, Immigr., Refugees & Citizenship Can., Canada Announces Immigration Measures
Supporting Hong Kong Residents and Canadians in Hong Kong (Nov. 12, 2020), https://www.canada.ca/en/
immigration-refugees-citizenship/news/2020/11/canada-announces-immigration-measures-supporting-hong-
kong-residents-and-canadians-in-hong-kong.html; Statement, François-Philippe Champagne, Fed. Minster of
Foreign Aff., Gov’t of Can., Canada Takes Action Following Passage of National Security Legislation for Hong
Kong (July 3, 2020), https://www.canada.ca/en/global-affairs/news/2020/07/canada-takes-action-following-
passage-of-national-security-legislation-for-hong-kong.html.
168
. Dominic Raab, U.K. Foreign SOS, National Security Legislation in Hong Kong: Foreign Secretary’s
Statement in Parliament, Speech Before the House of Commons, HC Deb (July 20, 2020) (678) cols. 1831–33
(UK); Stephen Castle, U.K. Suspends Extradition Treaty with Hong Kong Over Security Law, N.Y. TIMES (July
20, 2020), https://www.nytimes.com/2020/07/20/world/asia/extradition-treaty-hong-kong.html.
169
. See Stuart Lau, European Chief Singles Out China’s Moves on Hong Kong, Xinjiang as She Unveils
New Sanctions Scheme, S. CHINA MORNING POST (Sept. 16, 2020, 9:00 AM), https://www.scmp.com/
news/china/diplomacy/article/3101824/european-chief-singles-out-chinas-moves-hong-kong-xinjiang-she. The
European Union (EU) adopted a human rights sanctions regime on December 7, 2020 that gave the EU the
ability to impose sanctions on state or non-state actors deemed to commit “serious human rights violations or
abuses.” See Press Release, Council of the European Union, EU Adopts a Global Human Rights Sanctions
Regime (Dec. 7, 2020, 1:00 PM), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=OJ:L:2020:410I:FULL&from=EN [hereinafter EU Adopts a Global Human Rights Sanctions Regime].
170
. Kurt Tong, Washington’s Self-Defeating Hong Kong Strategy, FOREIGN AFF. (June 2, 2020),
https://www.foreignaffairs.com/articles/china/2020-06-02/washingtons-self-defeating-hong-kong-strategy
(finding that Australia, Canada, and the United Kingdom “are looking for ways to support the city and its people
rather than taking steps that will worsen, however unintentionally, the damage Beijing has inflicted”).
184 HASTINGS LAW JOURNAL Vol. 73:1
and HK officials, the everyday people of HK must bear the brunt of the negative
effects associated with the current U.S. response.
171
For example, Executive
Order 13936 prohibits HK passport holders from enjoying special treatment and
has ended special trading privileges for all of HK.
172
If other countries decide to
follow in the footsteps of the United States, then it could alter the world’s view
of HK so that it becomes seen as an ordinary Chinese city that is unworthy of
special treatment.
The PRC and HK will naturally integrate more quickly if the international
community does not recognize HK under one country, two systems. This is so
because HK was viewed as a distinct and separate entity before the NSL’s
enactment. Its separate judicial system, economic freedoms, and autonomy to
hold democratic elections made HK distinct from the rest of the PRC.
173
Countries, including the United States, have placed their trust in the HK system
believing that it would continue to enjoy a limited autonomy and be free from
PRC intervention. But now that the United States has apparently challenged the
status quo by eliminating HK’s preferential treatment,
174
other countries may
similarly behave in a way that runs contrary to maintaining what is left of the
city’s one country, two systems due to U.S. influence. When this newfound lack
of HK support ensues, the central government will naturally step in to fill the
void and have a tighter grasp over the city, thereby further eroding HK’s
autonomy.
175
B. CHINA MAY ADHERE TO STRICT IMPLEMENTATION OF THE NATIONAL
SECURITY LAW TO DISPLAY ITS SOVEREIGNTY OVER HONG KONG
The PRC has maintained its position that the U.S. response to the NSL is
an interference in its national sovereignty and has expressed its distaste in strong
terms. The PRC claims that the United States has infringed on its right “to
formulate and implement national security legislation” over HK.
176
Moreover,
the central government views the United States’ “[u]nreasonable meddling and
shameless threats” as typical “gangster logic and bullying behavio[]r.”
177
The
171
. The Editorial Board, Visas for Hong Kong, WALL ST. J. (May 30, 2020, 9:15 AM),
https://www.wsj.com/articles/visas-for-hong-kong-11590792802.
172
. Exec. Order No. 13936, 85 Fed. Reg. at 43,414.
173
. Prableen Bajpai, Hong Kong vs. Mainland China: What’s the Difference?, INVESTOPEDIA (June 2,
2020), https://www.investopedia.com/articles/investing/121814/hong-kong-vs-china-understand-
differences.asp.
174
. See Tong, supra note 170 (calling on the United States to “[d]efend the [s]tatus [q]uo, [n]ot [a]ssist in
[i]ts [d]emise”).
175
. “[F]ormer 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 . . . ‘just another Chinese city.’” Joe Renouard, America’s New Hong Kong Human Rights Act May Be
Provocative, But It’s Not Surprising, THE DIPLOMAT (Nov. 30, 2019), https://thediplomat.com/
2019/11/americas-new-hong-kong-human-rights-act-may-be-provocative-but-its-not-surprising.
176
. US Sanctions Will Only Be Self-Defeating, supra note 132.
177
. Jessie Pang & Yanni Chow, China Slams U.S. Response to Hong Kong Security Law as ‘Gangster
Logic,’ REUTERS (July 15, 2020), https://www.reuters.com/article/us-hongkong-security-idUSKCN24H065.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 185
PRC simply does not back down, nor will it back down, when it comes to
safeguarding its own national security.
178
Indeed, the PRC views the United
States as a bully, and it certainly will not stand idle while the United States
meddles in what it perceives as strictly internal affairs.
In fact, the PRC has been very vocal against U.S. interference. When the
United States enacted the HKHRDA, the Chinese Ministry of Foreign Affairs
issued a statement condemning U.S. interference and accused the United States
of “openly back[ing] violent criminals who rampantly smashed facilities, set
fire, assaulted innocent civilians, trampled on the rule of law, and jeopardized
social order.”
179
The PRC also threatened to take countermeasures against the
United States if it continued to interfere in its internal affairs.
180
Evidently, the
PRC may have followed through with its threats against the United States, in
part, when it promulgated national security legislation over HK.
181
Global
Times, a state-run tabloid associated with the Communist Party, published an
article one day before the NSL’s enactment stating that the PRC must “fight
some tough battles against U.S. interference in [HK] . . . .”
182
It dismissed U.S.
efforts as being limited and emphatically stated that the HKHRDA will be
overwhelmed when confronted by the NSL.
183
Therefore, the PRC has played
an active role against the United States in an attempt to push back on its
interference in HK.
Now that the NSL is in place and the United States has yet again interfered
in HK affairs, the PRC is likely to remain active, push back against the United
States as it did in response to the HKHRDA, and display its sovereignty in the
process. The central government has stated that U.S. sanctions “will only be self-
defeating.”
184
Although only time will tell what is meant by this statement, the
PRC may ultimately decide to implement the Law with a heavy hand to quash
hope that the country can be influenced or bullied by the United States. But even
if it does not engage in this way, the PRC is likely to continue doing as it sees
fit. Either way, the current U.S. response is futile and appears to hurt the situation
in HK under the NSL.
VI. LOOKING AHEAD: A SHIFT IN CURRENT UNITED STATES POLICY COULD
MARGINALLY SHAPE IMPLEMENTATION
The United States has been criticized for its response to the HK NSL. One
of the biggest critiques is the United States’ double standards on human rights
178
. “[T]he Chinese government is rock-firm in safeguarding national sovereignty, security and
development interests, in implementing the ‘One Country, Two Systems’ policy, and in opposing any external
interference in Hong Kong affairs.” Id.; Commissioner’s Office disapproves US Accusations, supra note 134.
179
. Statement of the Ministry of Foreign Affairs, supra note 130.
180
. Id.
181
. LAWRENCE & MARTIN, supra note 18, at 5.
182
. Editorial, National Security Law Will Be New Start for HK, GLOBAL TIMES (June 29, 2020, 9:03 PM),
https://www.globaltimes.cn/content/1192992.shtml.
183
. Id.
184
. US Sanctions Will Only Be Self-Defeating, supra note 132.
186 HASTINGS LAW JOURNAL Vol. 73:1
abroad when it appears to disregard those rights at home.
185
In an attempt to
undermine the United States’ assertion that the Law violates human rights norms
and civil liberties, the PRC capitalized on U.S. turmoil by criticizing the United
States when George Floyd’s death sparked unrest and violence.
186
The PRC has
good reason to call out the United States for criticizing its alleged human rights
abuses in HK because the United States itself has failed to uphold human rights
at home.
187
However, doing so does not give the PRC a free pass to disregard
criticism against itself because human rights abuses are still abuses,
188
and the
Law arguably violates the PRC’s international obligations under the Sino-British
Joint Declaration, ICCPR,
189
and HK Basic Law.
190
The United States nevertheless has the duty to speak out against human
rights abuses and take concrete action to stop the abuses. Although its current
response is unlikely to positively change the PRC’s implementation of the NSL,
the United States could still shape implementation on the margins by taking a
more nuanced approach that also takes Chinese criticism into account. The
United States could shift the current tide to impact the HK situation more
positively by considering working together with its allies to implement a
cohesive plan that would uphold one country, two systems. This collective
response could also include shining a spotlight on the PRC by seeking an
advisory opinion from the International Court of Justice (ICJ) on the NSL.
191
The United States is currently proceeding on its own accord in response to
the NSL. While part of the U.S. response overlaps with other countries, such as
offering a path for the people of HK to emigrate or suspending its extradition
185
. Statement, Zhang Jun, Permanent Representative of China, US Attempt to Smear China’s Human
Rights Record Failed Again, (Oct. 6, 2020), http://chnun.chinamission.org.cn/eng/hyyfy/t1822154.htm; China,
on Behalf of 26 Countries, Criticizes U.S., Other Western Countries for Violating Human Rights, XINHUA (Oct.
6, 2020, 2:10 AM), http://www.xinhuanet.com/english/2020-10/06/c_139420907.htm; Naomi Xu Elegant, As
Protests Roil the U.S., Beijing Seizes the Moment to Call Out ‘Hypocrisy’, FORTUNE (June 3, 2020, 2:20 AM),
https://fortune.com/2020/06/03/george-floyd-protest-us-china-hypocrisy-hong-kong; Tamara Cofman Wittes,
Promoting Human Rights Abroad When They’re Being Trampled at Home, BROOKINGS: BLOG (June 3, 2020),
https://www.brookings.edu/blog/order-from-chaos/2020/06/03/promoting-human-rights-abroad-when-theyre-
being-trampled-at-home.
186
. Elegant, supra note 163.
187
. Id.
188
. Tamara Cofman Wittes, a Senior Fellow at the Brookings Institute, explains how “[t]he moral
foundation for American advocacy of human rights does not lie in our status as a paragon of international virtue.”
Wittes, supra note 185. Rather, “[t]he most effective advocacy begins from the acknowledgement that human
rights are both universal and inherent, not dependent on one’s form of government.” Id.
189
. Although the PRC has not ratified the ICCPR, it is still obligated to abide by its rules under the HK
Basic Law. See XIANGGANG JIBEN FA art. § 39 (H.K.).
190
. Statement on NSL, supra note 9; Joint Statement on NSL, supra note 9.
191
. Jack Rodgers, Hong Kong National-Security Law Scrutinized in House Hearing, COURTHOUSE NEWS
SERV. (July 1, 2020), https://www.courthousenews.com/hong-kong-national-security-law-scrutinized-in-house-
hearing/; The End of One Country, Two Systems?: Implications of Beijing’s National Security Law in Hong
Kong: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. 2nd Sess., at 01:29:19 (2020),
https://foreignaffairs.house.gov/2020/7/the-end-of-one-country-two-systems-implications-of-beijing-s-
national-security-law-in-hong-kong (statement of Carole J. Peterson, Professor of Law, William S. Richardson
School of Law) [hereinafter The End of One Country, Two Systems?].
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 187
treaty with HK, it does not appear as though all parties involved are
implementing the same plan. For example, the UK,
192
Canada,
193
and the United
States
194
have halted exports of sensitive military equipment and technology to
HK, whereas Australia has not committed to such an act. Likewise, no other
country has implemented sanctions on HK other than the United States,
195
although the European Union may soon follow suit.
196
Because the United States
is working alone in this regard, the PRC is less likely to feel pressured to change.
Thus, a more positive outcome on the HK situation could be achieved with
international human rights pressure and concerted effort with allies, as
demonstrated by the world’s response towards Argentina in the late 1970s.
At the time, Argentinian security forces abducted, tortured, and imprisoned
anywhere between 3,000 to 30,000 people
197
to eradicate terrorists
198
and
societal elements that were considered as subversive.
199
When news broke out
about this crisis, the international community heavily criticized the country’s
gross human rights abuses.
200
Because of this collective pressure, the world
eventually saw a decline in human rights abuses in Argentina.
201
Similarly,
collective pressure towards the HK NSL is necessary to effect change towards
the PRC’s deterioration of one country, two systems.
The United States would also benefit by following in the footsteps of like-
minded partners in their foreign policy towards the PRC’s erosion of one
country, two systems. Australia, Canada, and the UK, for example, are “all just
as invested as the [United States] in [HK]’s continued autonomy and
success,”
202
yet their responses are more aligned with supporting the city
192
. Raab, supra note 168.
193
. Champagne, supra note 168.
194
. Exec. Order No. 13936, 85 Fed. Reg. at 43,414.
195
. See Designations of NPC Officials, supra note 10; BUREAU OF E. ASIAN & PAC. AFF., supra note 10.
196
. See EU Adopts a Global Human Rights Sanctions Regime, supra note 169.
197
. No organization can definitively state the amount of people in Argentina who have disappeared, but
the number most frequently cited is about 15,000. AMNESTY INT’L, Report of an Amnesty International Mission
to Argentina 6-15 November 1976, AI Index: AMR 13/083/1977 (Mar. 1, 1977) https://www.amnesty.org/en/
wp-content/uploads/2021/06/amr130831977eng.pdf.
198
. Cf. Roberta Cohen, Human Rights Diplomacy: The Carter Administration and the Southern Cone, 4
HUM. RTS. Q. 212, 213 (1982) (concluding that many of these individuals were not actually affiliated with
terrorists and were targeted based only on suspicions).
199
. U.S. DEP’T OF STATE, BUREAU OF DEMOCRACY, H.R. AND LAB., COUNTRY REPORTS ON HUMAN
RIGHTS PRACTICES FOR 1979 239 (1980).
200
. European nations, the United States, the U.N. Educational Scientific, and Cultural Organization, the
World Inter-parliamentary Union, as well as other international organizations “mobilized around a broad
international solidarity movement” to condemn Argentina for its human rights abuses. SONIA CARDENAS,
CONFLICT AND COMPLIANCE: STATE RESPONSES TO INTERNATIONAL HUMAN RIGHTS PRESSURE, 42–43 (2007).
201
. Id. at 52, 63. The director of the Washington Office on Latin America also stated that “[a]lmost every
major improvement in the human rights situation in Argentina can be traced to some form of international
pressure.” Cohen, supra note 198.
202
. Tong, supra note 170.
188 HASTINGS LAW JOURNAL Vol. 73:1
because they do not adversely impact the people targeted by the NSL.
203
On the
other hand, the U.S. response arguably contributes to the demise of one country,
two systems and has the potential to adversely impact people already targeted
by the NSL because the United States has paved the way for the PRC to have a
tighter grasp over the city under Executive Order 13936. Rather than distancing
itself from the city under the Order, the United States could exercise a more
limited approach that upholds HK autonomy and targets only Chinese and HK
leaders who contribute to the erosion of one country, two systems.
Moreover, a coordinated response with allies could entail taking the HK
matter to the ICJ. The United States and its allies in the United Nations (U.N.)
could do so by getting help from the General Assembly in seeking an advisory
opinion.
204
Nearly two-thirds of the advisory opinions issued by the ICJ have
been requested by the U.N. General Assembly.
205
The U.N. Charter provides a
mechanism for the General Assembly to request an advisory opinion from the
ICJ
206
so long as there is a two-thirds majority vote in favor of the measure.
207
These opinions are nonbinding and issued by the ICJ when an international
organization submits a request.
208
Despite being nonbinding, advisory opinions
may still be useful because they “carry great legal weight and moral
authority . . . [and] are often an instrument of preventive diplomacy.”
209
But obtaining a majority vote in the General Assembly to seek an advisory
opinion may be difficult to achieve. At present, thirty-nine countries, including
the U.S., issued a joint statement against the PRC for its human rights abuses in
HK.
210
On the other hand, fifty-five countries led by Pakistan echoed support
for the PRC’s sovereignty over HK and encouraged non-interference on internal
affairs.
211
Based on these numbers alone, the PRC appears to be supported by a
203
. Australia, Canada, and the UK have suspended their extradition treaties with HK and implemented new
visa measures for the people of Hong Kong to emigrate. Hong Kong Brief, supra note 166; Immigr., Refugees
& Citizenship Can., supra note 167; Champagne, supra note 167; Raab, supra note 168.
204
. Carole Peterson, a legal scholar specializing in Hong Kong constitutional law and human rights,
suggested seeking an advisory opinion from the ICJ on the Hong Kong matter at a House Committee hearing on
the Hong Kong National Security Law. The End of One Country, Two Systems?, supra note 191.
205
. The U.N. General Assembly has requested seventeen of the twenty-eight total advisory opinions from
the ICJ. What is an Advisory Opinion of the International Court of Justice (ICJ)?, U.N. DAG HAMMARSKJÖLD
LIBR.: ASK DAG, https://ask.un.org/faq/208207 (May 20, 2021); see Judgments, Advisory Opinions and Orders
From 1946 to 2020, INT’L CT. OF JUST., https://www.icj-cij.org/en/decisions/advisory-opinion/1946/2020/desc
(last visited Jan. 3, 2022).
206
. U.N. Charter art. 96, ¶ 1.
207
. U.N. Charter art. 18, ¶ 3.
208
. Advisory Jurisdiction, INT’L CT. OF JUST., https://www.icj-cij.org/en/advisory-jurisdiction (last visited
Jan. 3, 2022).
209
. Id.
210
. Christoph Heusgen, Joint Statement on the Human Rights Situation in Xinjiang and the Recent
Developments in Hong Kong, Delivered by Germany on Behalf of 39 Countries, Address Before the United
Nations (Oct. 6, 2020), https://new-york-un.diplo.de/un-en/news-corner/201006-heusgen-china/2402648.
211
. Press Release, Pandemic Pushing Those Least Able to Adapt into Positions of Greater Risk, General
Assembly President Tells Third Committee, amid Calls for Greater Protections, U.N. Press Release
GA/SHC/4287 (Oct. 6, 2020), https://www.un.org/press/en/2020/gashc4287.doc.htm.
January 2022 THE UNITED STATES’ INEFFECTIVE RESPONSE 189
greater number of countries. If the United States and its allies want to secure a
majority vote on the possibility of having the U.N. General Assembly seek an
ICJ advisory opinion, they must campaign for such an outcome.
Although securing a majority vote might be difficult, bringing the matter
to the General Assembly itself will still shine a spotlight on the NSL. The
process of campaigning and seeking an advisory opinion could place the HK
situation at the forefront of international criticism yet again. Similarly,
campaigning for an ICJ advisory opinion could exert pressure on the central
government to be more cautious in its implementation of the Law.
212
However,
others have argued that public pressure and opinions do not meaningfully affect
the central government.
213
But even if attempting to seek an ICJ opinion has
minimal impact on the government, it would still be better than no effect at all.
The United States will likewise benefit if the HK matter is brought before
the ICJ. The PRC may presumably ignore the advisory opinion, just as it has
done in the past on other ICJ matters,
214
but the PRC’s probable loss would still
be embarrassing for itself nonetheless because the country would be blamed.
215
The ICJ would be a formal avenue to uphold the concept of one country, two
systems. The United States would also increase its legitimacy towards the HK
situation by having a neutral third-party in the ICJ provide an objective opinion
over the situation instead of the current tit-for-tat approach by the United States.
While these options by no means offer a perfect solution for combating the
deterioration of HK autonomy, it should at least shape the PRC’s
implementation of the NSL on the margins by preventing the PRC from
proceeding in a heavy-handed manner when it comes to managing HK. The PRC
would face collective pressure if the United States worked as a team with its
allies to uphold the concept of one country, two systems. Likewise, the United
States could add to its legitimacy by working with its allies to seek an ICJ
advisory opinion over the NSL because the PRC has arguably violated its
international obligations. Overall, international pressure on the HK situation
would, at the very least, force the PRC to be more cautious and less strict on its
implementation of the NSL.
212
. The End of One Country, Two Systems?, supra note 191.
213
. Tong, supra note 170.
214
. China referred to a U.N. arbitral tribunal ruling on the South China Sea matter as “‘a piece of paper’
that is destined to come to naught” and disregarded the tribunal’s ruling. Opinion, Inherently Biased and Unjust
‘Piece of Paper,’ CHINA DAILY (July 13, 2016, 7:47 AM), http://www.chinadaily.com.cn/opinion/2016-
07/13/content_26065667.htm.
215
. Tong, supra note 170. There is good reason to believe that Beijing would be at fault, especially when
the U.N. Human Rights Office performed an initial analysis on the Hong Kong NSL and found it in violation of
the ICCPR. Press Briefing, Rupert Colville, Spokesperson, U.N. High Comm’r for Human Rights, Note on China
/ Hong Kong SAR (July 3, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?
NewsID=26033&LangID=E.
190 HASTINGS LAW JOURNAL Vol. 73:1
CONCLUSION
The PRC’s enactment of national security legislation over HK created
uproar not only within HK but also throughout the international community.
Although HK was guaranteed a high degree of autonomy for fifty years under
the Sino-British Joint Declaration, the PRC nearly dismantled the concept of one
country, two systems when it implemented national security legislation over
HK. The NSL arguably erodes civil liberties and human rights that the people of
HK have enjoyed for decades. Accordingly, the United States, while remaining
consistent with its foreign policy towards human rights violators, condemned
the NSL, issued sanctions under the HKAA and Executive Order 13936, and
suspended its preferential treatment of HK under the same executive order, and
provided for HK residents to remain within the United States for a limited
amount of time.
Despite fulfilling both its moral and legal duty to speak out and take
concrete action against the Law, the current U.S. response is unlikely to positive
shape the PRC’s implementation of the NSL. The PRC is unlikely to relent to
U.S. interference and may adhere to strict implementation of the Law because
the PRC values state sovereignty and has a sovereign duty to protect national
security. The current U.S. response likely also contributes to the deterioration of
HK autonomy. But the United States may still influence the NSL’s
implementation on the margins by shifting its current foreign policy to a more
nuanced approach. To do so, the United States should consider working with its
allies to implement a cohesive plan that would prevent the further deterioration
of HK’s autonomy. Part of this plan should entail seeking an ICJ advisory
opinion over the PRC’s enactment of HK’s NSL.
