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The Hong Kong Human Rights and Democracy Act

In September, protesters in Hong Kong marched to the U.S. Consulate to demand that Congress pass the 2019 Hong Kong Human Rights and Democracy Act (HKHRDA). The bill, introduced by Senator Marco Rubio with bipartisan support in June 2019, would subject Hong Kong to an annual review of “democratic ideals.” Should Hong Kong fail to meet these democracy standards, it could lose its special trading status with the U.S., as established by the 1997 Basic Law and the U.S.-Hong Kong Policy Act of 1992. The bill passed unanimously in the Senate on November 19, 2019 after violence broke out at Hong Kong Polytechnic University just two days before. While President Trump can still veto the bill in consideration of risking further escalation of the trade war with China, the bill offers a unique lens through which to view the current situation in Hong Kong.

While the 1992 act allows the U.S. president to revoke Hong Kong’s distinct trading status under section 5722(a), its 1997 successor grants Hong Kong its “one country, two systems” status, allowing it to maintain autonomous judicial, political, and economic processes from China. 

The HKHRDA aims to hold China accountable for respecting Hong Kong’s autonomy while reaffirming American support for democracy and human rights. Under the HKHRDA, trade privileges would depend on the region’s compliance with human rights and democracy standards, which some fear could lead to sanctions in the future. In addition, the HKHRDA requires the U.S. Secretary of State to report annually to Congress on the status of Hong Kong’s autonomy from Beijing to justify its unique treatment under U.S. law. It also requires that the U.S. deny entry to and freeze the U.S.-based assets of any Chinese individual found guilty of torturing pro-democracy and human rights activists in Hong Kong.

President Trump has said little about the bill and the situation in Hong Kong, though unsurprisingly, the Communist Party of China (CCP), Chief Executive of Hong Kong Carrie Lam, and the rest of the pro-Beijing camp oppose the bill. China has said it will respond “forcefully” in response to the bill’s passing,  which China sees as an undesirable manifestation of American interference with internal politics. Foreign interference aside, it seems counterintuitive that many Hong Kongers support a bill that risks their special trading status and potentially compromises their economic interests. As such, Hong Kongers’ responses to the bill have been mixed. Pro-democracy activists, including Joshua Wong Chi-fung and Denise Ho Wan-sze, have testified in Washington in support of the bill’s passage to ensure Hong Kong’s democratic freedoms. On the other hand, some activists have expressed concern about America’s long history of exploiting foreign countries under the guise of supporting democracy, pointing to Section 3 of the HKHRDA, which articulates that the bill’s purpose is to defend U.S. interests independent of the interests of Hong Kongers.

Similarly, Section 6(c)1.A of the bill “assesses whether the Government of Hong Kong is ‘legally competent’ to administer the United States-Hong Kong Agreement for the Surrender of Fugitive Offenders.” While this section seems primarily meant to protect U.S. citizens in the case that the extradition bill passes, it also includes the ability to force Hong Kong to extradite U.S. “criminals,” a power the U.S. failed to exercise over Edward Snowden in 2013. As such, many Hong Kongers have questioned whether the bill might primarily be a means for the U.S. to prosecute its political opponents rather than an authentic affirmation of Hong Kong’s democracy. Although the U.S. includes the extradition clause in the bill, it may not actually have teeth in Hong Kong. Extradition requests need to be agreed upon by both parties and would still need to pass through Hong Kong’s judicial system. At best, the extradition clause seems like empty American posturing.

Of more concern to the protesters is the threat to Hong Kong’s special status under U.S. law, which entails “favorable trade terms, bilateral ties and recognition as a sovereign entity for the purposes of commerce, transportation, and education exchange.” Local activists write that, “just as Hong Kongers have been exploited and forsaken by the United Kingdom, American ‘allyship’ is filled with stories of betrayal. One needs only to consider the United States’ abrupt de-recognition of Taiwan’s Republic of China government as the sole legitimate representative of China in 1979, when it saw greater value in relations with the People’s Republic of China.”

It is precisely this prioritization of the U.S.’s own interests, however, that ensures the security of Hong Kong’s special status. The bill answers Hong Kongers’ calls for U.S. solidarity with no real threat of sanction. The U.S. is unlikely to jeopardize its own economic interests in the region or leverage export controls, which are already covered in current U.S. trade laws. Over 85,000 Americans live in Hong Kong, operating over 1,400 American businesses. Notably, at $32.6 billion in 2017, the U.S. trade surplus in Hong Kong is larger than that of any other American trading partner due to special privileges granted by the 1992 Act. Therefore, it is in the best interest of the U.S. to facilitate Hong Kong’s autonomy in trade and investment.

This guarantee of Hong Kong’s special trading status is important. While Hong Kong is considered to be one of the world’s freest and most dynamic economies—and one that people globally invest in and see as a gateway to China—the open economy does not benefit all Hong Kongers equally. The HKHRDA focuses on political freedoms guaranteed by democratic ideals, which, in the eyes of Hong Kongers, might help alleviate the economic turmoil of average citizens. Due to Hong Kong’s low corporate and personal tax rates and the lack of capital gains and inheritance taxes, the government relies on land sales for revenue, where a small number of tycoons own most of the development projects. Forced to pay for rents higher than those in New York, London, or San Francisco with a minimum hourly wage of only $4.82, most Hong Kongers have little access to the wealth their own open economy brings. The general sense of economic hopelessness resonates with Hong Kong’s young population: Nearly 20 percent of the city’s population lives in poverty, 250,000 individuals await public housing, and Hong Kongers struggle to compete with mainlanders who may be better educated or more well-off for job opportunities.

In a city where “elected” officials are shortlisted by the Chinese government, massive housing inequality reigns, and young people face a bleak economic future, the HKHRDA is a window into Hong Kong’s tense political situation. While the debate of American interference in other countries’ internal affairs is not new, Hong Kong’s situation extends far beyond US intervention in preserving democracy. Hong Kong has become a central rallying point between the U.S. and China, and the bill is America’s latest push in applying pressure on China about Uighur detention camps, its commercial practices, and its various global infrastructure initiatives. At stake, however, is the economic future of Hong Kongers who see democracy as a path to security and prosperity. The HKHRDA then, may just be the way to preserve Hong Kong’s autonomy and offer some hope to exhausted protesters.

Illustration by Emma Yang ’20: emmayyang.com

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