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PALAIS DES NATIONS• 1211 GENEVA 10, SWITZERLAND
Mandates of the SpecialRapporteur on the promotion and protection of human rights and fundamentalfreedoms while countering terrorism; the Working Group on Arbitrary Detention;the Special Rapporteur on extrajudicial, summary or arbitrary executions; the SpecialRapporteur on the promotion and protection of the right to freedom of opinionand expression; the Special Rapporteur on the rights to freedom of peacefulassembly and of association; the Special Rapporteur on the situation of humanrights defenders; and the Special Rapporteur on minority issues
REFERENCE:
OLCHN 17/2020
1 September 2020
Excellency,
We have the honour toaddress you in our capacities as Special Rapporteur on the promotion andprotection of human rights and fundamental freedoms while countering terrorism;Working Group on Arbitrary Detention; Special Rapporteur on extrajudicial,summary or arbitrary executions; Special Rapporteur on the promotion andprotection of the right to freedom of opinion and expression; SpecialRapporteur on the rights to freedom of peaceful assembly and of association;Special Rapporteur on the situation of human rights defenders; and SpecialRapporteur on minority issues, pursuant to Human Rights Council resolutions40/16, 42/22, 35/15, 34/18, 41/12, 34/5 and 43/8.
In this connection, weoffer the following comments on The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special AdministrativeRegion (“National Security Law”).1 Weexpress concern that the measuresadopted in the National Security Lawdo not conform with your Excellency’s Government international legalobligations, in particular theUniversal Declaration of Human Rights (UDHR) and the International Covenant onCivil and Political Rights (ICCPR). Specifically, we are concerned that the lawlacks precision in key respects,infringes on certain fundamental rights and maynot meet the required thresholds of necessity, proportionality andnon-discrimination under international law. Werecommend review and reconsideration of this legislation to ensure that the law is in compliancewith China’s international human rights obligations with respect to the HKSAR.
Similar concerns regardingthe human rights challenges of previously issued anti- terrorism and nationalsecurity legislation related to the HKSAR were the subject of a previouscommunication sent by Special Procedures dated 23 April 2020 (CHN 7/2020) and 19June 2020 (CHN 13/2020). We thankyour Excellency’s Government for the reply received to CHN 7/2020,and for the ongoing and sustained dialogue on security and counter-terrorismregulation more broadly, however we regret not yethaving received aresponse to UA CHN 13/2020.
Overview of international human rights lawstandard applicable.
1 English translation available athttp://www.xinhuanet.com/english/2020-07/01/c_139178753.htm.
International human rightslaw and standards applicable remain in force inthe Hong Kong Special Administrative Region of the People's Republic of China in accordance with Section XI of Annex I to the Joint Declaration of the Government of the United Kingdomof Great Britain and Northern Ireland and the Government of the People'sRepublic of China on the Question of Hong Kong2 and article 39 ofthe Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.3We remind your Excellency’sGovernment that under article 2 of the ICCPR, Hong Kong SAR is under a duty to ensure that individualsunder its jurisdiction enjoy the rights in theCovenant and adopt laws as necessary to ensurethat the domestic legal system is compatiblewith the Covenant. Moreover, the Covenant compels States to take active andspecific administrative, judicial and legislative measures to ensure that allof the rights enshrined in the Covenantare protected and that effective remedies are provided if they are breached by States. We note that articles 6, 7, 8, 11, 15 and 18 are non-derogableunder thetreaty.
We respectfully remindyour Excellency’s Government of the relevant provisions of the United Nations Security Council resolutions 1373 (2001), 1456(2003), 1566
(2004),1624(2005),2178(2014),2242(2015),2341(2017),2354(2017),2368(2017),
2370 (2017), 2395 (2017) and 2396 (2017); aswell as Human Rights Council resolution 35/34 and General Assembly resolutions49/60, 51/210, 72/123 and 72/180. All of these resolutions require that Statesensure that any measures taken to combat terrorism or violent extremism,including incitement of and support for terrorist acts, must comply with all oftheir obligations under international law.
We also bring yourExcellency’s Government attention to the “principle of legal certainty” underarticle 15(1) of the ICCPR, which requires that criminal laws are sufficientlyprecise so that it is clear what types of behaviour and conduct constitute acriminal offence and what would be the consequence of committing such anoffence. This principle recognizes and seeks to prevent ill-defined and/oroverly broad laws which are open to arbitrary application and abuse and maylead to arbitrary deprivation of liberty.
Background
The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special AdministrativeRegion was passed by the National People’s Congress Standing Committee (NSCSC)and promulgated on 1 July 2020. It went into force on the same day. The law’s adoption followed aformal decision on 28 May 2020 authorizing the NPCSC to draft a nationalsecurity law for the HKSAR. This decision was the subject of a prior communication bySpecial Procedures (CHN 13/2020). The law regulates four distinct categories of offences: secession,subversion, terrorism and collusion with a foreign country or with externalelements to endanger nationalsecurity.
2 Available athttps://www.cmab.gov.hk/en/issues/jd3b.htm.
3 Xianggang Jiben Fa art. 39, available athttps://www.basiclaw.gov.hk/en/basiclawtext/chapter_3.html.
The compatibility of theNational Security Law with international human rights
law.
We commend the addition of article 4 of theNational Security Law, which acknowledges the need to protect the human rightsand fundamental freedoms guaranteed under the Basic Law of the HKSAR, the ICCPR, and the International Covenant onEconomic, Social and Cultural Rights (CESCR). Wealso note the commitment to the principle of the rule of law articulatedin article 5 of the law. Despite these welcome and positiveadditions, the content of the measures adopted in the National Security Law nonetheless poses a serious riskthat these fundamental freedoms and due process protections may be infringed upon. In particular, weexpress concern at the broad scope of the crimes defined as secession andsubversion; the express curtailment offreedoms of expression, peaceful assembly, and association; the implications ofthe scope and substance of thesecurity law as a whole on the rule of law; and the interference with theability of civil society organisationsto perform their lawful function. We underscorethat security and human rights are intertwined and not separate.4Effective security demands the protection of rights in a holistic and integrated way. Here we stress the collectiveinterdependency of the compendium of rights set out in the ICCPR, which function to collectively complement andenhance the advancement of the security and rights of each individual in society.5 We recall and concur with the Human RightsCommittee’s view that “rules concerning the basic rights of the human person”contained in the ICCPR are erga omnesobligations.6
Additionally, while wecommend the acknowledgement that the National Security Law is subject to human rights obligationsunder the Basic Law and the ICCPR, we express concern at the risk that good faith compliance with theseobligations may be at risk bygranting authority to transfer jurisdiction from the HKSAR to the CentralPeople’s Government under article 55. Every treaty in force isbinding upon the parties to it andmust be performed by them in good faith.7 Circumventionof this core obligation by means of administrative process undermines the spirit and substance of the ICCPR. Any actwhich gives rise to a criminal processunder this legislation in the HKSAR,and individuals who are then charged with offences arising under thelegislation are fully and without abrogation entitled to the right to fair trial as guaranteed under article 14of the ICCPR in every process andevery stage of process that follows (arrest, detention, charging, trial andsentencing). The People’s Republic of China isnot a party to the ICCPR, however, ifcriminal regulation of the Central People’s Government is to beapplied under this legislation, all such processes must beICCPR-compliant, noting in particular the significance of article 14 ofthe ICCPR. Moreover, any acts of cooperation between agencies of HKSAR andgovernment agencies (for example under article 53 whereby the Office forSafeguarding National Security of the CentralPeople’s
4 A/HRC/43/46,para. 5; A/HRC/37/52, para. 5; A/HRC/40/52, para.11.
5 Human Rights Committee, General Comment 31,The Nature of the General Legal ObligationImposed on States Parties to theCovenant, CCPR/C/21/Rev.1/Add.13, paras 15 and18.
6 Id atpara 2, and in parallel pursuant toarticle 26 of the Vienna Convention on the Lawof Treaties, States Parties arerequired to give effect to theobligations under the Covenant in goodfaith.
7 Vienna Convention on the Law of Treaties(1969), art.26.
Government in the Hong Kong SpecialAdministrative Region shall establish a mechanism of coordination with theCommittee for Safeguarding National Security of the Hong Kong SpecialAdministrative Region in respect of HK residents or citizens) would be subjectto the requirements of the ICCPR in all respects and must also be fully ICCPRcompliant in all aspects of cooperation.
We note that article 55 grants the CentralPeople’s Government the authority to exercisejurisdiction over national security cases that are complex, serious, or pose amajor and imminent threat, when requested by the Government of the HKSAR.Article 56 states the Supreme People’s Court shall designate a court toadjudicate the case and article 57 states that the Criminal Procedure Law ofthe People’s Republic of China will be applied.We point out the obvious obligation to your Excellency’s Government that if theCriminal Procedure Law of the People’s Republic of China is applied to persons or groups from HKSARfor acts occurring in or related toHKSAR, that law would be necessarily required to be fully compliant with the ICCPR, to avoid breach of the obligations of yourExcellency’s Government. It should be pointedout that the application of criminal investigation, examination and prosecution,trial and execution of penalties willall need to be fully ICCPRcompliant, given the positive undertakings given by your Government underarticle 4 of thelaw.
We note particularly thatthe authority to transfer cases out of the HKSAR risks undermining the HSKAR’sgood faith compliance with its obligation to provide the right to a fair trialunder article 14 of the ICCPR making any cases of transfer a de facto breach of the ICCPR fair trialobligations, unless transfer is fully ICCPR compliant. We are also concernedabout a number of procedural provisions that may undermine compliance withICCPR obligations including article 62 (that this law which may have provisionsinconsistent with the ICCPR prevails over local law which is ICCPR compliant);and article 65 (which vests the power of interpretation of the law solely withthe Standing Committee of the National People’s Congress) sidesteppingindependent judicial assessment of whether the law and action taken on thebasis of it is ICCPR compliant. In this regard, we highlight the provisionswhich appear to undermine the independence of judges and lawyers found inarticle 44 which are broad and imprecise and appear to undermine the right tofreedom of expression held by the legal professional under article 25 of theICCPR, having both an individual and collective effect on the exercise of thisright.
Definitionof Terrorism
We respectfully remindyour Excellency’s Government, that States should ensure that counter-terrorismlegislation is limited to criminalizing terrorism conduct which is properly andprecisely defined on the basis of the provisions of international counter-terrorism instruments and is strictly guided by the principles of legality,necessity and proportionality. The definition of terrorism in nationallegislation should be guided by the
acts defined in the Suppression Conventions,8 the definition foundin Security Council resolution 1566(2004) and also by the Declarationon Measures to Eliminate International Terrorism and the Declaration toSupplement the 1994 Declaration on Measures to Eliminate InternationalTerrorism, which were approved by the General Assembly.9 TheSecurity Council’s definition of a terrorist actrequires intentionality to causedeath or serious bodily harm and the act must becommitted to provoke a state of terror.10 We reiterate that the model definition ofterrorism advanced by the Special Rapporteur on the promotion and protection ofhuman rights and fundamental freedoms while countering terrorism provides clearguidance to States on appropriate conduct to beproscribed as best practice.11 We re-affirmthat the model definition’s three-pronged set of elements for the regulation ofterrorism acts12 and itscumulative approach more broadly, function as a safety threshold to ensure thatit is only conduct of a terroristnature that is identified asterroristconduct.13
We commend the increased specificity in the definition of terrorist activitiesunder article 24 of the National Security Law. Article 24 requires that thecriminal act be committed with theintent to cause grave harm to thesociety with a view to coerce thegovernment in order to pursue apolitical agenda. This obligation is aligned with the relevant provisions ofthe key international counter-terrorism instruments. Furthermore, many of the specific criminal acts—such as“serious violence against a person”, the use of arson or poison against thepublic, or dangerous activities which seriously jeopardise publichealth—represent well recognized categories of terrorist conduct. Theseactivities are also aligned with theSecurity Council’s definition of a terrorist act which requires intentionality to cause death or serious bodilyharm.14
However, we caution thatterrorist activities included in article24 describing damage to physical property—such as sabotage of transportfacilities or public services— riskcriminalizing conduct that goes beyond theSecurity Council’s definition of terrorist conduct if the damage is notcommitted with the intent to cause death or serious bodily harm. In her 2019thematic report, the Special Rapporteur on the promotion and protection ofhuman rights and fundamental freedoms while countering terrorism cautioned that“[d]efinitions of terrorism that include damage to property, including publicproperty . . . seriously affect the right to freedom of assembly . . . [and]canbe
8 See e.g. the Convention on Offences and Certain Other ActsCommitted on Board Aircraft (TokyoConvention) of 1963; the Convention for the Suppression of Unlawful Seizure of Aircraft(Hague Convention) (1970); the International Convention on the Taking of Hostages(Hostages Convention) of 1979; theConvention for the Suppression of Unlawful Acts against the Safety ofCivil Aviation of 1971; and theConvention on the Prevention andPunishment of Crimes againstInternationally Protected Persons, including Diplomatic Agents, of 1973; E/CN.4/2006/98 paras 25-50,72
10 S/RES/1566,para. 3.
11 A/59/565 (2004),para. 164 (d).
12 E/CN.4/2006/98, para37.
13 E/CN.4/2006/98,para.38.
14 S/RES/1566,para. 3.
used against individuals engaging in social movements where damageto property is unwittingly incurred.”15
We note that allcounter-terrorism instruments must be strictly guided by the principles oflegality, necessity and proportionality. Thus, the use of such instruments mustbe limited to address genuine threats of terrorism. China’s counter-terrorismefforts must be necessary and in proportion to the actual threat of terrorismit faces, in particular in the context where your Excellency’s Government hasstated that this new legislation is designed only to target few individuals.16The use of the National Security Law’s terrorism measures should be strictlylimited to address conduct which is genuinely terrorist in nature and shouldnot be used to restrict or limit protected fundamental freedoms, including therights to opinion, expression, and of peaceful assembly.
NationalSecurity
The legislationestablishes that it “isenacted… for the purpose of … safeguarding national security” (article 1). Article 8affirms that “in order to safeguard national security effectively the lawenforcement and judicial authorities of the Hong Kong Special AdministrativeRegion shall fully enforce this Law … concerning the prevention of, suppressionof, and imposition of punishment for acts and activities endangering nationalsecurity”. We recognize that your Excellency’s Government has the primaryresponsibility to maintain nationalsecurity, consistent with the United Nations Charter and concurrent treatyobligations of States including human rights treaties. Moreover, personalsecurity and liberty is a recognizedfundamental human right as affirmed in theUDHR (article 3) and the ICCPR (article 9). Westress that national security is notset apart from the obligation to protect and ensure human rights but ratherthat the latter is a necessary andintegral part of the right to security guaranteed to each person individually.The right to security is thus anindividual right exercised in acollective context. We point out ourconcerns, which have been previously set out by multiple mandate holders aboutemploying national security language in abroad and imprecise manner that diminishes and impinges in absolute ways on the rights of individuals, including in particular the arbitrary deprivation ofliberty prohibited by article 9 of the ICCPR and article 3 of theUDHR.17
National security is not a term of art, nor does the use ofthis phrase as a legislative matter give absolutediscretion to the State. Rather, whennational security functions as a legal basis for criminal sanction it must, to meet the requirements ofprecision and clarity under the ICCPR (article 9 (1)), be expressly linked to adefined set ofcriminalactsandnotcriminalizeactsandentitlementswhicharelawfulunder
15 A/HRC/40/52,para. 41.
16https://www.scmp.com/news/hong-kong/politics/article/3085791/two-sessions-2020-hong-kong-national-security-law-will-only
international law.18 We point out that the deployment ofnational security terminology to criminalizethat which is protected under theICCPR would be in breach of thetreaty’s obligations. We stress thatthe United Nations Human Rights Committee interprets article 9 affirmatively, by setting out thatState Parties must take “measures to prevent future injury”.19 We caution that overly broad nationalsecurity legislation where the precise perimeters of individual actions to be criminalizedare vague and open-ended would run counter to this aspect of your Excellency’streatyobligations.
Article 5 of thelegislation sets out that “[a] person who commits an act which constitutes anoffence under the law shall be convicted and punished in accordance with thelaw”. We recall that the principle of legal certainty in conformity with theICCPR demands that the contours of each legal act be clearly defined andascertainable so as to ensure the rule of law and the rights of the individualare fully observed. This is particularly relevant in this case, given thesignificant sanctions that follow from conviction related to any offences setout in this law.
Secessionand Subversion
Part I of the Act addresses the crime of secession andPart II the crime of subversion. We would firstlike to address the human rights dimensions of secession, which areregulated by article 20 of the law. Secession isa term which has been the subject of longstanding state practice andinternational judicial interpretation and has been conjoined with substantiveanalysis of human rights protections for minorities and groups.20Article 20 sets out three scenarios by which the crime of secession can be executed. Webring again to your Excellency’s Government attention the “principle oflegal certainty” enshrined in article15(1) of the ICCPR and article 11 of the UDHR and note our concerns thatcertain phrases in this articleincluding “undermining national unification”, “altering by unlawful means” and“surrendering … to a foreign country”, are broad and imprecise and do notindicate precisely what kind of individual conduct would fall withintheir ambit. We are likewiseconcerned that the use of the term ‘participation” constitutes an inchoateoffence, namely criminalizing activities that havenot as yet been committed in contraventionof article 15 of the ICCPR. Moreover, the qualification that the crime ofsecession is undertaken “whether ornot” by threat of force or use of force means that a range of acts includingand not limited to speech and assembly may beconstrued as secession under the law. Such construction would engage theobligations of the ICCPR and may interalia prejudice fair trialrights. We are thus troubled that arange of legitimate activities expressly protected by the ICCPR will be redefined domestically as secession bythislegislation.
18 The Human RightsCommittee’s General Comment 35 on the Right to Liberty and Security of Person,CCPR/C/GC/35.
19 Id., para. 9.
20 See e.g., Reportof the Commission of Rapporteurs on the Aaland Islands, League of Nations Doc.B.7 21/68/106 (1921); Reference re Secession of Quebec, 1998 CanLII 793 (SCC),[1998] 2 SCR 217; Accordance with International Law of the UnilateralDeclaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J.Reports 2010, para. 45.
Furthermore, we highlightthat the term subversion is problematic given the requirement of legalcertainty elucidated under article 15 of the ICCPR. Concerns about the use ofsubversion legislation and misuse of this terminology by your Excellency’sGovernment have already been made on multiple occasions by the mandates of theWorking Group on Arbitrary Detention, the Special Rapporteur on the Rights toFreedom of Opinion and Expression and the Special Rapporteur on the Situationof Human Rights Defenders.21 Subversion is almost uniformly directedtowards the regulation of activity viewed as political under domestic law.Subversion is generally understood as a ‘political crime’ which has a legalgenealogy across the globe: deployed to punish individuals for what they think(or what they are thought to think) rather than on the basis of action oractivities which pose a defined criminal threat.
In this regard we bring toyour Excellency’s attention article 25 of the ICCPR which affirms the right andthe opportunity to “each citizen, without any of the distinctions mentioned inarticle 2 and without unreasonable restrictions to (a) take part in the conductof public affairs directly or through freely chosen representatives”. The rightto directly and indirectly participate in political and public life isessential in empowering individuals and groups, and is one of the core elementsof human rights-based approaches aimed at eliminating marginalization anddiscrimination.22 Participation rights are inextricably linked toother human rights such as the rights to peaceful assembly and association,freedom of expression and opinion and the rights to education and toinformation. We stress that the phrase “directly” in article 25 underscores theindividual nature of political expression and the emphasis in this provision on“public affairs” which extends to a wide array of political engagement. We alsopoint out that article 35 of the legislation which provides that personsconvicted of national security offences “shall be disqualified from standing asa candidate in the elections of the legislative council” appears to contravenearticle 21 of the UDHR and article 25(b) and (c) of the ICCPR, allowing for theright to be elected, and to have access on general terms of equality to publicservice.23
By means of this legislation it appears that subversion operates in a multi- functional way and may be directed against individuals across a wide set ofcircumstances. We are concerned thatsubversion’s application may not be limitedto a narrow purpose but may instead be used todetain, try and criminalise persons engaged in political activities, as well as social and educationaltargets. We recall the obligation ofarticle 2 of the ICCPR, whereby the State isunder a duty to adopt laws that givedomestic legal effect to the rights and adopt laws as necessary to ensurethat the domesticlegal
21 AL CHN 2/2018,UA CHN 10/2015: UA CHN 5/2015: UA CHN 5/2015: and UA CHN 7/2016.
22 A/HRC/27/29.
23 See also, theInternational Covenant on Economic, Social and Cultural Rights (art. 8); theInternational Convention on the Elimination of All Forms of RacialDiscrimination (art. 5 (c)); the Convention on the Elimination of All Forms ofDiscrimination Against Women (arts. 7 and 8); the Convention on the Rights ofthe Child (art. 15); the Convention on the Rights of Persons with Disabilities(arts. 4 (3), 29, 33 (3)).
system is compatible with the Covenant.24Noting again the “principal of legal certainty” enshrined in article 15(1) ofthe ICCPR and article 11 of the UDHR, which require that criminal laws aresufficiently precise so it is clear what types of behaviour and conductconstitute a criminal offence and what would be the consequence of committingsuch an offence. This principle recognizes that ill-defined and/or overly broadlaws are open to arbitrary application and abuse. We note our resoundingconcern that the definition of subversion in this law is overly broad and maythus be applied in an arbitrary fashion.
We point out that regrettably the termssubversion and secession appear to be usedinterchangeably in nationallegislation, and we are concerned that this conflation may lead to the potential misuse of these legal categories against humanrights defenders, journalists and civil society actors. The use of these terms in the legislation, given their opaque andambiguous meaning leaves open the distinct possibility for application beyondunequivocal incitement to violence or specific acts of violent insurgencydirected against the State. Instead, such provisions may function to interpretlegitimate engagement by the governed with the State as unlawful. As a result, many human rights defenders find they are persecuted for exercisingrights that are specifically guaranteed under the Declaration on Human RightsDefenders,25 particularly with relation to article 6 which, amongothers, guarantees the right to seek information on human rights, as well ashold and disseminate their opinions on the observance of those rights withinand by the State. We note thatsecession and subversion often function as over-inclusive legal categories,mopping up a range of acts that if placedin thecounter-terrorism category would be found inconsistent with a strictreading of the global counter-terrorism obligations of the state, which are constrained by the Suppression Conventionsand by United Nations Security Council Resolution1566.
Freedom ofOpinion, Expression, and Peaceful Assembly
We are particularly troubled that thislegislation may impinge impermissibly on the rights to freedom of opinion,expression and of peaceful assembly as protected by the UDHR and ICCPR.26For example, articles 20 and 22 of the law which define organizing, planningcommitting or participating in secessionor subversion, appear to criminalise speech acts, including political writing;article 27, which addresses advocacy of terrorismor incitement of terrorist activity, is alsosufficiently wide so as to encompass freedoms of opinion and speech; andarticle 29, which sets out the crime of conspiracy with a foreign state, may also affect both assemblies and speechacts. Similarly, article 29 (5), which criminalises provocation “by unlawfulmeans” of hatred among HK residents towards the Central People’s government;article 9, whereby the HK Special Administrative Region “shall … take necessarymeasures to strengthen … supervision and regulation over … socialorganizations,themediaandtheinternet”;andarticle41,whichenablesnational
24Article 16 of the Guidelines for Stateson the effective implementation of the right to participate in public affairs https://www.ohchr.org/Documents/Issues/PublicAffairs/GuidelinesRightParticipatePublicAffairs_web_CH.pdf
25 Declaration on the Rightand Responsibility of Individuals, Groups and Organs of Society to Promote andProtect Universally Recognized Human Rights and Fundamental Freedoms A/RES/53/144
26 Articles 2, 19,20, 21 of the UDHR; articles 19, 21 of the ICCPR.
security trials to be “closed to the media and the public,” also appear tocriminalize freedom of expression or any form of criticism of your Excellency’sGovernment in its regulation of HongKong. The law thus implicates bothserious concerns of legality as well as undue limitations on freedom ofopinion, expression and peaceful assembly. The application of such provisionsruns the grave risk of being targeted at, interalia, the legitimate activities of political opposition, critics,dissidents, legislators, civil society, human rights defenders, lawyers,students, bloggers, artists, and others.27 We note that deprivation of liberty occasioned primarily as aresult of the peaceful exercise of rights protected by the ICCPR and UDHR is arbitrary under international law.28We would like to remind your Excellency’s Government that, in its resolutions, the Human RightsCouncil noted its grave concern that “in some instances, national security andcounter- terrorism legislation and other measures … have been misused to target human rights defenders or havehindered their work and endangered their safety in a manner contrary to internationallaw.”29
We would liketo emphasize that any restriction on freedom of expression that agovernment implements on grounds of national security, secession, subversion orcounter terrorism, must have thegenuine purpose and the demonstrable effect of protecting a legitimate nationalsecurity interest.30 Moreover, laws permitting such restrictions must be sufficientlyclear and not afford undue discretion to the authorities in restricting speech. Lastly, even wherethe law pursues a legitimate aim and is sufficiently clear, the restrictionwould be unlawful if it constitutesa disproportionate interference in therights of individuals. The State has the burden of proof to demonstrate the compatibility of anyrestriction with the requirements under the Covenant. We recall that the freedom of expression also protects speechthat offends, shocks and disturbs, as long asit does not amount to incitement to national, racial or religious hatred,hostility or violence prohibited underarticle 20 of the ICCPR.31 Restrictions on the freedom of expressionthat silence critical voices or opinions about government would be contrary to the object andpurpose of article 19 of the ICCPR.32 We would also like to stress that security and/or counterterrorism legislation with penal sanctions should never be misused against individuals exercising their rights tofreedom of expression and freedom ofassociation and of peaceful assembly, and should not be misused to deprive suchindividuals of their personal liberty through arrests and detention. These rightsare protected under ICCPR and the application of criminal law to thenon-violent exercise of these rights would for most purposes be contraryto the Covenant. Counter terrorism and/or security legislation cannot be used as an excuse to suppress peaceful groups and theirmembers, nor can it havethechillingeffectofsuppressingthelegitimateexerciseoftheirrights.National
27 AHRC/37/52,para. 47
28 A/HRC/36/38
29A/HRC/RES/25/18, A/HRC/RES/27/31, A/HRC/RES/32/31and A/HRC/RES/34/5.
30 Human RightsCommittee, General comment No. 34, article 19: Freedoms of opinion andexpression; CCPR/C/GC/34.
31 See Human RightsCommittee, general comment No. 34, para. 11.
32 Id. paras. 20 and 42.
security legislation cannot be used to hinder the work and safety ofindividuals, groups, and organs of society engaged in promoting and defendinghuman rights.33
Establishment of the Committee for SafeguardingNational Security
A national security entityis established by article 12 of thelegislation.34 The Special Rapporteur on the promotion andprotection of human rights and fundamental freedoms while countering terrorismreminds your Excellency’s Government of the human rights obligations that areincumbent on such bodies, which have been addressed previously by her mandate.35In particular, she has stressed the importance of independent oversight ofnational security bodies, including but not limited to intelligence agencies.36 She observes thatindependent human rights based oversight of national security is an important means to ensure that humanrights are protected by all entities involved innational security regulation. This necessityfor independent oversight would appear to beparticularly compelling with the establishment of a new department ofnational security in the Hong Kong Police Force (articles 16& 17) and the creation of a specialised division of the Hong Kong Justice department (article 18). We note our collective and profoundconcerns that the legislation authorizes both policeand prosecutors to be subject to an oath of secrecy, whichappears per se incompatible with theobligations to respect and ensure human rights in national security contexts. The regulation of nationalsecurity does not exempt the police and prosecutors from the obligationsto respect and ensure human rights under the ICCPR, rather it mayheighten and affirm those obligations, precisely because of the dangersof over-reach and misuse of exceptional powers. In this regard, we bring tothe attention of your Excellency’s Government the Code of Conduct forLaw Enforcement Officials and the Guidelineson the Role of Prosecutors.37We stress the importance of humanrights compliant enforcement of the criminal law particularly in the national security realm, and affirmthat police officers and prosecutors acting on the basis of this law, are fully responsible for yourExcellency’s Government human rights obligations in their actions. In this context, we suggest to yourExcellency’s Government the appointment of a fully independent reviewer of theapplication, operation, and compliance of thelaw with international human rights obligations as a recommended best practice by the Special Rapporteur onthe promotion and protection of human rights and fundamental freedoms.38We remain open and willing to provide technical advice and assistance to theestablishment and operation of such abody.
33 A/HRC/RES/22/6,para. 10.
34 The committee is established by the Governmentof Hong Kong based on the provisions of the national security law bythe Standing Committee of the National People’s Congress. It is supervised byand accountable to the Central People’s Government. It is chaired by the ChiefExecutive of the government of Hong Kong.
35 A/HRC/10/3 para25-78; A/HRC/14/46
36 A/HRC/43/46/Add.1, para. 60(h); A/HRC/40/52/Add.5, paras. 71–77; A/HRC/40/52/Add.4,paras. 32–37.
37 Adopted respectivelyby resolution 34/169 of 17 December 1979, which adopted the code of conduct forLaw Enforcement Officials, on the recommendation of the Fifth United NationsCongress on the Prevention of Crime and the Treatment of Offenders, and theEight United Nations Congress on the Prevention of Crime and the Treatment ofOffenders, Havana, Cuba (1990)
38 A/HRC/16/51,para. 14, Practice 4 (2).
Civil Society
We conclude by noting our concerns pertaining to the protection and role of civil society which may be negatively impacted by the application of this legislation.We underscore that general assertionsof conduct that threatens “national security” without proper definitions andlimitations may severely curtail civic space, the right to participate in public affairs, the rights ofminorities and the work of human rights defenders and other civil societyactors and their right to associate. In her 2019 thematic report, the SpecialRapporteur on the promotion and protection of human rights and fundamentalfreedoms while countering terrorism cautions that overly broad definitions ofwhat constitutes threats to national security results in a chilling effect on civicspace, the stigmatization of civilsociety actors, and excludes civil society from engaging in national and international fora.39Specifically, she notes that legislation criminalizing acts “affecting nationalsecurity, political and social stability and [are] dangerous to the political,economic or social system” criminalizes legitimate thoughts and expressions ofcivil society actors, including “civil society organizations, human rightsdefenders, journalists, bloggers and political opponents . . . .”40 Human rights defenders mayfind that their right to defend human rights becomes increasingly precarious,as many legitimate avenues through which they carry out their activities aredesignated as terrorist activity, subversion, secession or of collusion with aforeign country or with external elements as per thislegislation.
We call attention to therole that civil society plays in advancing the totality of rights contained inboth the ICCPR and the CESCR as well as in advancing the 2030 Agenda inparticular SDG 16, with particular emphasis on freedom of expression and opinion,association and peaceful assembly and the right to participate in publicaffairs. We emphasize that these rights are human rights that enable persons toshare ideas and experiences, form new ones, and join with others to claim theirrights. Empowered civil society and its participation is essential to buildingsecure societies and leaving no one behind. Conversely, restricting civilsociety undermines the security that builds healthy and vibrant societies. Werecall that the Human Rights Committee has noted that while article 2 (2) ofthe ICCPR “… allows States Parties to give effect to Covenant rights inaccordance with domestic constitutional processes, the same principle operatesso as to prevent States parties from invoking provisions of the constitutionallaw or other aspects of domestic law to justify a failure to perform or giveeffect to obligations under the treaty”.41
As it is our responsibility, under the mandates provided to us bythe Human Rights Council, to seek toclarify all cases brought to our attention, we would be grateful for your observations on the followingmatters:
39 A/HRC/40/52,paras. 60, 61, 65.
40 A/HRC/40/52,para. 46.
41 CCPR/C/21/Rev.1/Add.13 para 3.
1. Please provide any additionalinformation and/or comment(s) you may have on the above-mentioned assessment ofthelegislation.
2. Please explain how the legislation is compatible with Your Excellency’sGovernment’s obligations under articles 2,14, 15, 17, 19, 20, 21, 22 of theICCPR and articles 11, 12, 19 and 20 of the UDHR and how it may remediate the aforementionedinconsistencies with international human rights standards enshrined in theAct.
3. Please provide information on how the definitions ofsecession, subversion and collusion with a foreign country or with externalelements to endanger national security are compatible with the principle oflegal certainty established under theICCPR.
4. Please provide information on how your Governmentintends to enforce theextra-territorial jurisdiction of the legislation as enshrined in articles 36, 37, 38, and 55 to ensurecompatibility with theICCPR
5. Please provide information on howthe human rights commitment set out in article4 of the legislation will be enforcedinpractice.
6. Please identify the positive measures and oversightprovided by your Excellency’s Government on the excise of the powers nowenumerated in the legislation.
This communication, as acomment on pending or recently adopted legislation, regulations or policies,and any response received from your Excellency’s Government will be made publicvia the communications reporting websitewithin 48 hours. They will also subsequentlybe made available in the usual report to be presented to the Human RightsCouncil.
Please accept, Excellency, the assurances of our highestconsideration.
Fionnuala Ní Aoláin
Special Rapporteur on the promotion andprotection of human rights and fundamental freedoms while countering terrorism
Elina Steinerte
Vice-Chair of the Working Group on Arbitrary Detention
Agnes Callamard
Special Rapporteur on extrajudicial, summary or arbitrary executions
Irene Khan
Special Rapporteur on the promotion andprotection of the right to freedom of opinion and expression
Clement Nyaletsossi Voule
Special Rapporteur on the rights to freedom of peaceful assembly andof association
Mary Lawlor
Special Rapporteur on the situation of human rights defenders
Fernand deVarennes
SpecialRapporteur on minority issues
