CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK

CYIL 11 (2020)

1. The National Security Law for Hong Kong On 30 June 2020, the Standing Committee of the National People’s Congress (NPC) of the People’s Republic of China (PRC) passed the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region 2 (NSL). The NSL entered into force on the same day. The Standing Committee was authorized to do so by the NPC in May 2020. Immediately, the NSL caused uproar, as both its content and the manner in which it was adopted seem to contravene the “one country, two systems” principle enshrined in Paragraph 3(12) of the 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 (Beijing, 19 December 1984) 3 and in Article 5 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China 4 . The NSL, inter alia, establishes a new government body – the Committee for Safeguarding National Security – and confers wide powers on it and on the Hong Kong Police Force and the Department of Justice to enforce the NSL. The NSL also criminalizes a number of offences, namely secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security. With the exception of the offence of terrorist activities, the offences criminalized under the NSL are prima facie political offences or offences of political character. All these offences are punishable with life imprisonment or with long prison sentences (but not the death penalty). Legal entities may be liable for these offences as well (Article 31). While many of the NSL’s provisions are highly controversial 5 , it should be noted that the “extraterritoriality” of the NSL’s penal provisions (Article 38) is in fact not unusual. “Extraterritoriality” of substantive criminal law is rather common, especially among in countries with civil law legal systems. “Extraterritoriality” can be expressed in a number of principles governing the scope of application of substantive criminal law, namely the principles of active and passive personality, the principle of universality, the principle of protection (of important interests of the state) 6 etc. Article 38 of the NSL seems to be rather standard example of the principle of protection and similar provisions can be found in the laws of many European and other states (e.g. the Czech Republic – Section 7(1) of the Criminal Code 7 , Finland – Section 3 of the Criminal Code 8 , France – Article 113-10 of the Penal Code 9 , Germany – Section 5 of the Criminal Code 10 , Indonesia – Article 4 of the Criminal Code 11 , 2 English translation is available online at http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm. 3 English text is available online at https://www.cmab.gov.hk/en/issues/jd2.htm. Despite its title (“declaration”), this document is legally binding international agreement. 4 English text is available online at https://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html. 5 See, for example, Amnesty International, Hong Kong’s national security law: 10 things you need to know , available online at https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need- to-know/. 6 Principle of protection or “protective principle” is widely accepted as legitimate – see, for example, JENNINGS, R. andWATTS, A. (eds.), Oppenheim’s International Law , Vol. I, Peace (9th edn., Burnt Mill: Longman, 1992), p. 470-471. 7 English translation is available online at http://www.ejtn.eu/PageFiles/6533/Criminal%20Code%20of%20 the%20Czech%20Republic.pdf. 8 English translation is available online at https://finlex.fi/fi/laki/kaannokset/1889/en18890039_20150766.pdf. 9 English translation is available online at http://www.legifrance.gouv.fr/content/location/1740. 10 English translation is available online at https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0028. 11 English translation is available online at https://www.unodc.org/res/cld/document/idn/indonesian_penal_ code_html/I.1_Criminal_Code.pdf.

104