Although the United Nations has both a Human Rights Council and a Human Rights Committee, they could not be more different.
The UN Human Rights Council (UNHRC) was established by the UN General Assembly in 2006, with a mandate to promote and protect human rights around the world. Although it seeks to make balanced assessments of human rights situations, this has not always pleased everybody. Whereas, for example, the United States joined the UNHRC in 2009, it withdrew in 2018, once it realized that its members could not be pushed around or bent to its will, only to rejoin in 2021.
In June 2020, the National Security Law for Hong Kong (“NSL”) was enacted, primarily to safeguard national security and “prevent, suppress, and impose punishment” for acts deemed to be secessionist, subversive or terrorist in nature, or for collusion with external forces. As Hong Kong previously lacked its own national security laws, the NSL was widely welcomed, not least because the legal void had been ruthlessly exploited in the insurrection of 2019-20 by people determined to wreck the “one country, two systems” policy, thereby harming China.
When, therefore, the UNHRC held its 44th session in July 2020, the NSL was, not surprisingly, endorsed by 53 states, although there was some opposition. In the absence of the US, the United Kingdom, its proxy, took the lead in rallying critical governments, although it could only muster 27, including its Five Eyes partners: Australia, Canada, and New Zealand. Although the UK, like its partners, has tough national security laws of its own, and knew that Hong Kong had a very narrow escape in 2019, its ambassador, Julian Braithwaite, nonetheless called upon its government to “reconsider the imposition of this legislation”. If heeded, Braithwaite’s call would have threatened the city’s very survival.
However, the UNHRC, to its credit, would not allow the UK and its cronies to pull the wool over its eyes, and its support of the NSL was emphatic. It emphasized each country’s right to enact legislation to safeguard its national security, and acknowledged that the NSL abided by the “one country, two systems” policy. It also presciently observed that the new law would ultimately benefit Hong Kong’s long-term prosperity, and so it has proved.
As can be imagined, anti-China forces were incensed by the UNHRC’s decision, and they set about trying to undermine the NSL by other means. One such was the United Nations Human Rights Committee (“the Committee”), which is distinct from the more high-profile UNHRC, and, by comparison, is tiny, having only 18 individual members. It was established in 1966 to monitor the compliance of the 173 states that were parties to the International Covenant on Civil and Political Rights (ICCPR), and to make recommendations for its implementation.
As the ICCPR applies to Hong Kong through the Basic Law (Art.39), its application is subject to periodic review. When, therefore, they became aware that the Committee would be examining Hong Kong at its 135th session in 2022, the anti-China forces saw an opening, and they combined to target its 18 members. As the Committee operates under great pressure, its 135th session had also to consider the situations in Luxembourg, Uruguay, Ireland, Georgia and Macao, and this played directly into the hands of those wishing to harm Hong Kong, who bombarded it with negative submissions.
Thus, on July 4, when non-governmental organizations were invited to make oral submissions to the Committee, eight of the 10 participants used the platform to malign the NSL. Leading the charge was Simon Cheng Man-kit, who is best remembered as the British Consulate-General employee who was arrested in 2019 for “soliciting prostitutes” in Shenzhen, following which the consulate dismissed him. He later fled to London, where he created “Hongkongers in Exile”, a small grouping that liaises closely with Hong Kong Watch, the anti-China propaganda outfit, and he now bizarrely holds himself out as a “human rights activist”, advocating “freedom and democracy” and a “parliament-in-exile” for Hong Kong. A warrant has been issued for Cheng’s arrest, for “inciting secession or colluding with foreign powers”, which means he has a vested interest in the NSL’s repeal, and his submission was a mishmash of confusion, distortion and bile.
Of the 10 speakers, only two had firsthand information on Hong Kong, with both being barristers who live and work in the city. One, representing Lawyers Hong Kong, described the organized attempt to overthrow the “one country, two systems” policy in 2019, and explained how the NSL had saved the city from destruction. The other, representing the Hong Kong and Mainland Legal Profession Association, explained how judicial independence is alive and well in the city, how international jurists have confirmed that the Judiciary continues to adjudicate freely on cases, and how everybody charged with NSL offenses receives a fair trial. He also pointed out that the ICCPR is incorporated into the NSL, and that the World Justice Project’s Index 2021 ranked Hong Kong 19th out of the 139 jurisdictions surveyed, something the Committee was subsequently to ignore.
In due course, the Committee placed great weight on the submissions of Cheng and his allies, and disregarded those of the two barristers. It condemned the NSL, culpably disregarding its role in ensuring the survival of the “one country, two systems” policy. This suggests that the Committee held preconceived views, or harbored inherent bias, or was willing to accept fallacies that were repeated to it enough times. Whichever it was, and it may have been a combination of all three, the Committee has disgraced itself, and its ill-judged report belongs in cloud cuckoo land.
After the NGOs had been heard, the Committee considered the Hong Kong Special Administrative Region government’s fourth ICCPR report, on July 7, 8 and 12, with the Hong Kong delegation being led by the secretary for constitutional and mainland affairs, Erick Tsang Kwok-wai, who reportedly acquitted himself well in the face of hostile grilling. Although Tsang was questioned about various issues, it was apparent that the Committee’s primary focus was on the NSL, and that it had no interest in the circumstances that necessitated its enactment. Instead, observers noted that it appeared intoxicated by the fallacies and propaganda spiels churned out by a galaxy of anti-China bodies, among which the US-based Human Rights Watch, which promotes America’s foreign policy objectives, particularly in the Far East, stood out, together with Freedom House.
However, to create an illusion of fair play, the Committee, on July 27, when it issued its report, craftily threw Tsang several complimentary tidbits. It commended, for example, the HKSAR government’s progress in tackling discrimination and harassment, in advancing children’s rights, and in introducing statutory paternity leave. This, however, was a smokescreen, and, to general incredulity, the Committee’s vice-chair, Christopher Arif Bulkan, who had sought to belittle the NSL by incorrectly claiming it had been enacted without consultations, declared that the NSL was “incompatible” with the ICCPR.
Every country, of course, has to be able to defend itself, yet the Committee has sought to remove Hong Kong’s basic protections and to leave it at the mercy of every subversive, secessionist and terrorist who wants to harm China
Indeed, the Committee even called upon the HKSAR government to repeal the NSL, and to cease using it in the meantime. This, of course, was extraordinary, and, if heeded, it would have stripped Hong Kong of its defenses, and been an open invitation to the insurrectionists to resume their operations. But, not content with the repeal of the NSL, the Committee also recommended the repeal of the sedition law, introduced by the British in 1938, even though this would have left Hong Kong completely defenseless. Every country, of course, has to be able to defend itself, yet the Committee has sought to remove Hong Kong’s basic protections and to leave it at the mercy of every subversive, secessionist and terrorist who wants to harm China.
While breathtaking, such irresponsibility is overwhelmingly sinister, and the Committee has shattered its own credibility. It even regurgitated the protest movement’s stale demand that there be an inquiry into allegations of excessive use of force by the Police Force during the insurrection of 2019, the clearest possible sign that its agenda was hijacked by fanatics. This was despite there having already been a thorough investigation of police conduct by the Independent Police Complaints Council in 2020, chaired by a prominent barrister, and which, in its 999-page report, cleared the Police Force of misconduct.
By any yardstick, therefore, the Committee’s report was a crude hatchet job, and fell far below the objective standards to be expected of a UN body. For reasons of its own, it disregarded the voluminous information that explained how the NSL had ended the chaos, restored peace and harmony, and ensured future prosperity. Not surprisingly, the HKSAR government said it “strongly objects” to the “unfair criticisms”, although it would have been fully justified in using far tougher language for this travesty of the truth.
There was, perhaps, no more egregious example of the Committee’s abdication of responsibility than its conclusion that the NSL endangered judicial independence, a claim that flew in the face of the evidence it had received. Although it was specifically informed by the Hong Kong and Mainland Legal Profession Association that the British judge, Lord (Jonathan) Sumption, who sits on the Hong Kong Court of Final Appeal, had explained that the NSL “guarantees human rights”, and that his Canadian colleague, Beverley McLachlin, Canada’s former chief justice, had said “the Court is completely independent and functioning in the way I was used to in Canada”, it chose, for unknown reasons, to disregard this vital testimony.
What, moreover, makes the Committee’s conclusions all the more incomprehensible is that the NSL is actually human rights heavy. At its very outset, it not only stipulates that “human rights shall be respected and protected in safeguarding national security”, but also that the ICCPR’s provisions “shall be protected” (Art.4), and that “the principle of the rule of law should be adhered to” (Art.5). Such prioritization of the ICCPR should have delighted the Committee, instead of which, to its discredit, it sought to belittle its significance.
Indeed, few, if any, jurisdictions highlight the ICCPR in their national security legislation in the way that Hong Kong has done, and, for example, the UK’s National Security and Investment Act (2021) completely ignores it. As the ICCPR has been placed front and center of the NSL, the Committee should obviously have congratulated the HKSAR government ...
Indeed, few, if any, jurisdictions highlight the ICCPR in their national security legislation in the way that Hong Kong has done, and, for example, the UK’s National Security and Investment Act (2021) completely ignores it. As the ICCPR has been placed front and center of the NSL, the Committee should obviously have congratulated the HKSAR government, and its failure to do so, while churlish, suggests very strongly that it has lost control of its agenda and simply wants to embarrass China.
Thus, having savaged Hong Kong, the Committee also targeted Macao, a success story if ever there was one. After Macao was examined from July 13 to 15, it criticized such things as Macao Basic Law interpretations, the crime of insulting national symbols, threats to judicial independence, the human trafficking situation, and the state of freedom of association, freedom of peaceful assembly, and freedom of speech. If, however, the Committee imagined Macao would take all this nonsense lying down, it was sorely mistaken, and its redoubtable secretary for administration and justice, Andre Cheong Weng-chon, hit back, knowing this is the only way to handle a bully. He said that although the Macao SAR government was prepared to hold a constructive dialogue with it, the Committee should avoid “politicizing” its conclusions and refrain from making biased and inaccurate conclusions on the basis of unsubstantiated information.
There was, however, a fascinating development that provided context for the Committee’s shenanigans. As soon as it had called for the repeal of both the NSL and the sedition law, the European Union, which normally requires time for consideration, immediately endorsed its demands, suggesting complicity. Although it is unclear if it was involved in covertly formulating the recommendations, it had clearly been tipped off in advance. At the very least, both entities appear to have coordinated their activities, which should surprise nobody. In its annual report last April, the EU accused the NSL of having had a “chilling effect”, and obsessed endlessly about the prosecution of rioters and other insurrectionists in 2021. Of the Committee’s 18 members, moreover, five come from EU member states, and, for example, its Greek chair, Photini Pazartzis, holds the vice-presidency of the European Society of International Law, whose views may be imagined.
Quite clearly, the Committee’s report has debased the UN, and tarnished the good name of objective reporting, perhaps forever. It is a lamentable departure from the high standards the ICCPR signatories are entitled to expect, and it shows what can happen when politics intrudes. If there is any justice left in the world, the UN will hopefully now take a long, hard look at what went wrong at the 135th session, and initiate remedial measures to eliminate future such abuses. If it does not, Erick Tsang and Andre Cheong, and their respective governments, will be fully justified in winding down their involvement in subsequent reporting cycles, not least because propaganda exercises are a waste of everybody’s time and effort.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS