By
Chayan Chakraborty, B.Sc. (H), LL.M, M.Phil, PG Diploma in International Humanitarian Law, Guest Faculty, Sarsuna Law College.
Abstract
The United Kingdom handed Hong Kong to China in 1997. Several promises made by China for Hong Kong and its developmental policies at that point of time. But the world has witnessed that China is at the forefront of human rights violations. Even the basic rights have not been maintained properly in Hong Kong by China. In many instances, China has failed to provide a safe atmosphere to protect human rights.
In 2013 the UN Human Rights Committee concluded that in its observation that Hong Kong has no independence at all.
Human Rights are basic and primary rights for livelihood. A dozen of rights or more can be claimed by any citizen and in this aspect, the respective states are solely liable to protect these rights. But China is always an exception in this regard.
Key Words :
Human Rights, Basic Law, National Security, Rule of Law
Introduction
Human rights have always had a close connection with human civilization. Nondiscrimination is also closely associated with human rights. But the history of mankind always has drawn a different aspect because principles and their implementation are not the same [1]. Dignity was placed as a statue in the Roman system of law. A great Italian philosopher Pico Della Mirandola argued once in his famous oration On the Dignity of Man, that dignity is a gift from God and dignity is the ability to choose what he wants to be[2].
The world’s largest intergovernmental organization the United Nations is always encouraging the member states to promote human rights with the best possible manner[3]. Different proclamations of the UN dealt with human rights[4]. The exclusion of women, minorities, backward class people and others from the protection of the law was an elementary cause for the human rights movement throughout the globe[5].
The literature on the subject is adequate. Other than the printed material the various articles, blogs are also available on the digital platform. Moreover an illiterate person also familiar with the term human rights. Various human rights activist associations are fighting to establish human rights throughout the globe. But how they are working, procedures, human rights protections, in general, are not a matter of concern of this paper. The author in this paper tries to analyze the human rights violation in particular.
Hong Kong, a part of the British colony till 1997, was always famous among the scholars in the whole world for its colonial history.
On 1st July 1997, Hong Kong was handed over to China by the United Kingdom after more than 150 years of regime[6]. The current paper tries to analyze the present scenario of the said place and human rights related problem. Next, I will briefly explain the colonial history of Hong Kong. I shall analytically explore Beijing’s “Red Line” policy and National Security Law on Hong Kong. Lastly, I shall attempt to draw the kind attention of the valuable and respected readers of this paper that China is a name of universal human rights infringers in the world.
Historical background and reversion of Hong Kong to Chinese Sovereignty
Hong Kong, a “Fragrant Harbor” in Chinese located to the east of the Pearl River estuary on the south coast of China[7]. In 1842 Hong Kong was ceded by the Qing dynasty to Great Britain under the Treaty of Nanking. Geographically Hong Kong can be divided into three major parts. Among them, the Kowloon Peninsula in 1860 was ceded to Britain under the Convention of Peking and the New Territories was leased for ninety-nine years in 1898 to Britain.
The effect of British colonial rule and influence by experienced colonial administrators from the British colonial service make Hong Kong very unique in every respect from political to the commercial field. An in-depth study from different literature revealed that colonial Hong Kong always remains a safe home for the refugees particularly from China during the Taiping Rebellion, Sino-Japanese war and more recently in 1949 during the outbreak of the communist revolution.
Due to high-technology and industrial development, Hong Kong always remains focused on an international platform. Remarkable “Asian Tiger” , one of the region’s economic centres was established by Hong Kong in 1970[8]. Moreover the modern and latest business techniques, policies which are influenced by British methods and skilled labour Hong Kong always make a place in a business arena in the world[9].
It is noticeable that the process of decolonization was different in Hong Kong than in other colonies. Neither there was an internal demand nor international political pressure[10].
In 1972 the Chinese government had declared that the destiny of Hong Kong was a purely internal Chinese affair. In this context, the Sino-British Joint Declaration was signed in 1984[11]. This declaration was ultimately implemented by the way of handing over Hong Kong to China by the UK in 1997.
National Security Legislation and human rights violation
The year 1997 has become remarkable forever in Chinese political history. The world has witnessed a transfer of sovereignty of Hong Kong in 1997. The Chinese government gave their assent on “One country, two systems” principle[12]. After resuming sovereignty in 1997 the Chinese government founded the HKSAR. Moreover, Hong Kong is one of China’s special administrative regions[13]. Based on this policy Beijing introduced the Basic Law. According to this law, the traditional human rights shall not derogate in any circumstances[14]. Article 23 of the Basic Law stated that Hong Kong has to legislate rules on its own to forbid secession, sedition and subversion against the Chinese government[15]. Meanwhile, the Hong Kong government withdrew the proposed bill in 2003for massive protest.
But due to the aggressive nature of the Chinese government, the series of laws have been enacted in the name of national security is nothing but a severe threat to human rights[16].
Article 19 of the UDHR contains an important right in this context[17]. But many activists, scholars and journalists have been persecuted, imprisoned and detained in China for exercising this important right[18].
The Cyber Security Law which is draconian was initially passed in 2106 by the National People’s Congress but came into effect on 1st June 2017. According to this law, it is compulsory for all internet companies to store data domestically [19]. Indeed the Chinese government imposed excessive internet censorship in the world.
China a global opposition to human rights initiative
It is a well-known fact the United Nations always develop and safeguard human rights through two bodies namely charter bodies and Treaty Bodies. These two bodies are liable to defend such rights from its violations by different means and procedures. Among two bodies Treaty Bodies are duty-bound for compliance with provisions of the human rights treaty. This body is also responsible to receive periodic reports from state parties[20]. It has become the regular practice by China to oppose all human rights initiatives and various resolutions passed by different international human rights protection organisations against human rights violations from Myanmar to an earlier Nicaragua[21].
On several occasions, Beijing has ignored any discussion at the UN concerning its conduct for the violation of this basic rights[22]. Rohingya’s persecution by the Myanmar government is an example of genocide. According to the UN fact-finding mission, military officials of the highest rank should be investigated and punished for their cruel conduct towards the Rohingya Muslims[23]. But when the UN wants to take positive and strict action against Myanmar, Beijing has been disinterested and creates pressure.
Besides, Mainland China also has not obeyed the basic principles of humanitarian law namely necessity and proportionality.
Necessity and proportionality are basic principles of humanitarian law. It is indeed that infliction of harm upon an enemy combatant is necessary for an armed conflict. We can find the term military necessity in all four Geneva Conventions of 1949 and the two Protocols i.e. AP1 and APII, 1977 respectively[24]. But excessive force and its application cannot be permissible in any circumstances. Interpretation of the Force and Firearms and their use by the UN also clarify the minimum harm and injury shall be used by the law enforcement authority. But China doesn’t follow any humanitarian principles. The best example we can cite is police inaction[25]. Legal experts from the world opined that the Extradition bill proposed by China itself is controversial. The said bill contains a provision which is violative of human rights[26].
Therefore we can firmly say that China is in the forefront regarding the violation of human rights.
Conclusion
This research paper intends to make consciousness about the Chinese government and their activities for human rights violations.
Under the Presidency of Mr. Xi Jinping China has become a burning example of non-human rights activities. There is no such place of rule of law in China.
It has become common practice to undermine the international institutions and their guidelines now and then by China. They are not interested in any foreign concern who intervene in any affairs relating to violations of human rights in their territory.
The Belt and Road Initiative was known as BRI- a multimillion-dollar project ignoring massive human rights. Different human rights groups and lawyers have been victimised since 2015.
On the other hand Art.18 of the ICCPR everyone shall have freedom of religion. Religion is an inner manifestation of a human being. But it is condemned saying that the revised Regulations on Religious Affairs created by China which came into force in 2018 an example of violations of different provisions related to human rights.
Based on the above discussion the researcher would like to draw the kind attention of the international community to take some stringent action in this context. Rigid law and their implementation have become necessary not for China in particular but for all the nations who even violate any norms of human rights.
[1]Nagendra Singh, Enforcement of Human Rights in Peace and War and The Future of Humanity (Calcutta: Eastern Law House Pvt. Ltd., 1986)
[2]WgCdr (Dr) U C Jha (Retd), Human Rights and Justice International Documents (New Delhi: Vij Books India Pvt. Ltd., 2010)
[3]Dr. Manoj Kumar Sinha, Handbook Of Legal Instruments on International Human Rights and Refugee Laws (New Delhi: LexisNexis, 2014)
[4]Ibid
[5]Sandra Fredman, Comparative Human Rights Law (UK: Oxford University Press, 2018)
[6]Source: https://www.goodreads.com (Last visited on 29th September 2020)
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[13]Source: https://www.investopedia.com (Last visited on 16th August 2020)
[14]ParasDiwan&PeeyushiDiwan, Human Rights and Law Universal and Indian (New Delhi: Deep & Deep Publications, 1998)
[15]Source: https://economicstimes.indiatimes.com (Last visited on 25th October 2020)
[16]Source: https://www.amnesty.org (Last visited on 17th October 2020)
[17]Source: https://www.humanrights.com (Last visited on 1st November 2020)
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[23]Source: https://www.ohchr.org (Last visited on 22nd October 2020)
[24]WgCdr (Retd) Dr U C Jha, International Humanitarian Law The Laws of War (New Delhi: Vij Books India Pvt Ltd, 2011)
[25]Source: https://www.globalvoices.org (Last visited on 27th October 2020)
[26]Source: https://www.scmp.com (Last visited on 12th October 2020)