1. Trump Signs Act On the Eve of Thanksgiving Holiday in the United States
On 19 November 2019, the U.S. Senate unanimously passed the Hong Kong Human Rights and Democracy Act of 2019 (the "HK Human Rights Act"), with appropriate amendments to the version passed by the U.S. House of Representative on 15 October 2019. The next day the U.S. House of Representatives adopted the Senate version of the bill by a vote of 417 to 1.
Facing a near-certain override in both chambers had he vetoed the legislation, President Trump surprised many when he signed the Act into law late Wednesday, 27 November 2019. The Act now becomes law in the United States with immediate effect.
2. The Newly Passed HK Human Rights Act
The revised key terms of the newly passed HK Human Rights Act are largely similar to the version passed on 15 October 2019 by the House,1 but the scope of U.S. monitoring over Hong Kong is less extensive.
The remainder of this Alert discusses notable differences in specific provisions of the newly passed bill, as compared to the 15 October 2019 version.
(a) Annual Certification by the Secretary of State
Instead of adding new reporting requirements to the annual report required under section 301 of the Hong Kong Policy Act, the newly-passed bill will oblige the Secretary of State to submit an annual certification regarding the autonomy of Hong Kong. The yearly certification will no longer evaluate the "autonomous decision-making" of the Hong Kong Government, but only "indicates whether Hong Kong continues to warrant treatment under US law in the same manner as US laws were applied to Hong Kong before July 1, 1997".
On the one hand, the yearly certification will require the Secretary of State to evaluate in respect of an exhaustive list of areas:
(i) commercial agreements;
(ii) law enforcement cooperation, including extradition requests;
(iii) sanctions enforcement;
(iv) export controls, and any other agreements and forms of exchange involving dual use, critical, or other sensitive technologies;
(v) any formal treaties or agreements between the United States and Hong Kong;
(vi) other areas of bilateral cooperation that the Secretary determines to be relevant;
(vii) decision-making within the Government of Hong Kong, including executive, legislative, and judicial structures, including—
(I) freedom of assembly;
(II) freedom of speech;
(III) freedom of expression; and
(IV) freedom of the press, including the Internet and social media;
(viii) universal suffrage, including
the ultimate aim of the selection of the Chief Executive and all
members of the Legislative Council by universal suffrage;
(ix) judicial independence;
(x) police and security functions
(xii) laws or regulations regarding treason, secession, sedition, subversion against the Central People's Government of the People's Republic of China, or theft of state secrets;
(xiii) laws or regulations regarding foreign political organizations or bodies;
(xiv) laws or regulations regarding political organizations; and
(xv) other rights enumerated in the Universal Declaration of Human Rights, done at Paris on December 10, 1948, and the International Covenant on Civil and Political Rights, done at New York on December 19, 1966.
On the other hand, the yearly certification will limit the evaluation to (a) China's ability to limit Hong Kong's autonomy inconsistent with the Basic Law or the Joint Declaration and (b) the impact to any areas of cooperation between the United States and Hong Kong as a result of the erosion of autonomy in Hong Kong, with respect to the categories listed above. The yearly certification will not result in a standalone evaluation on the limitations to Hong Kong's autonomy.
(b) Changes to Decision-making Process Concerning US Visa Applications
This revised provision will only apply to visa applicants to enter, study or work in the United States. Their applications "may not be denied primarily on the basis of the applicant's subjection to politically-motivated arrest, detention, or other adverse government action".
Notably, this is no longer a "sense of" provision, so it will carry legal effect.
(c) Ongoing Obligation on the Secretary of State to Report to Congress on any Proposed Legislation in Hong Kong That Would Put US Citizens at Risk of Extradition or Rendition to China
This revised provision will only oblige the President to notify the Congress of any proposed legislation in Hong Kong that would put US citizens at risk for extradition or rendition to China, within 30 days of such proposal. In other words, the revision has removed the notice requirement when such proposed legislation would pose such risk to lawful permanent residents in Hong Kong, or otherwise have a significant impact on US interests with respect to Hong Kong.
(d) Action Against Persons Determined to be Responsible for Certain Behavior
Under the revised provision, the President will be required to produce an annual report listing every foreign person (both individuals and entities) who the President identifies to be "responsible" for the following:
(i) the extrajudicial rendition,
arbitrary detention, or torture of any person in Hong Kong;
(ii) other gross violations of internationally recognized human rights in Hong Kong.
In other words, the knowledge of the responsible foreign person becomes irrelevant. Further, the applicability of this provision is greatly reduced by the complete removal of "threatened rendition, arbitrary detention, or torture", "actual or threatened forced confession" and "repeated acts or decisions that contravene the shared obligations of China and Hong Kong under the Joint Declaration and Basic Law, and undermine the national interests of the United States in Hong Kong's autonomy and the rule of law".
The sanction of these foreign persons remains the same: asset blocking and a visa ban, except where the visa ban will not extend to the immediate family members of the identified foreign person.
A copy of the HK Human Rights Act, as passed by both the U.S. Senate and the U.S. House of Representatives, is available at https://www.congress.gov/bill/116th-congress/senate-bill/1838/text.
1. For further details regarding the HK Human Rights Act passed by the U.S. House of Representatives on 15 October 2019, please see Mayer Brown Legal Update US House approves Hong Kong Human Rights and Democracy Act – What is it? available at https://www.mayerbrown.com/en/perspectives-events/publications/2019/10/us-house-approves-hong-kong-human-rights-and-democracy-act-what-is-it.
Originally published November 28 2019
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