Author Interview: China's National Security

Fiona de Londras & Cora Chan

Tell us a little bit about the book

This collection emerges from two workshops hosted by the University of Hong Kong Faculty of Law’s Centre for Comparative and Public Law, one of which was funded by a British Academy/Leverhulme Small Research Grant. At these workshops we tried to explore the implications for the rule of law, “one country, two systems”, and Hong Kong’s guaranteed autonomy of how China understands and pursues national security. Maintaining China’s national security without endangering Hong Kong’s rule of law has been a major challenge in implementing the “one country, two systems” framework, not least because of the vastly different legal traditions of the two jurisdictions: the former practices a socialist legality of Leninist lineage whilst the latter has a common law legal system of “liberal” tradition.

In some ways, our workshops and this collection were an attempt to revisit and to expand the questions that were raised in and around 2003 when the first attempt to introduce “Article 23” national security legislation was resisted by the people of Hong Kong. That had led to an important collection, National Security and Fundamental Freedoms: Hong Kong’s National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under Scrutiny edited by Fu Hualing, Carole J. Petersen and Simon N.M. Young (HKU Press). In light of the significant developments in the China-Hong Kong relationship that occurred since this collection was published, we felt there was a need for another substantial contribution to the work on the security aspect of the Hong Kong-China relationship.

This book explores how China conceives of its national security and the position of Hong Kong. It considers the risks of introducing national security legislation in Hong Kong, and Hong Kong’s sources of resilience against encroachments on its rule of law that may come under the guise of national security. It points to what may be needed to maintain Hong Kong’s rule of law once China’s 50-year commitment to its autonomy under the Sino-British Joint Declaration ends in 2047. Given China’s growing international stature, the book’s reflections on China’s approach to security have much to tell us about its potential impact on the global political, security, and economic order.

What inspired you to take up this project?

The first attempt to introduce national security legislation in Hong Kong took place in 2003. The attempt ultimately failed due to widespread opposition from the Hong Kong public, and until this year there has been no attempt to reintroduce such legislation. However, we knew that the issue of introducing national security legislation in Hong Kong would come up again sooner or later because of the current Chinese leadership’s assertive approach to securitising the state, and because there have been developments in Hong Kong since 2003 that are perceived by China as threatening its “sovereignty, security and development interests”.

Given that the acute issues regarding the introduction of national security law in Hong Kong were bound to come up again, we thought that it would be useful to put together a forward-looking collection that explored whether, and if so how, China’s conception of national security could be maintained without jeopardising Hong Kong’s conception of the rule of law. In addition, this question goes to the heart of whether China’s “one country, two systems” governing framework, which it promised for Hong Kong for 50 years until 2047, is viable. The two jurisdictions are now mid-way through this 50-year journey. We think now is an appropriate juncture to publish a collection that reflects on what might be needed to make the framework sustainable in the long-run.

The book turns out to be extremely timely, because it was published just two months before Beijing’s National People’s Congress passed a decision for its Standing Committee to enact national security legislation for Hong Kong. This turn of events is shocking to many, because under Article 23 of Hong Kong’s Basic Law, national security legislation is supposed to be enacted by Hong Kong’s own legislature rather than imposed by Beijing. Our book has attracted significant attention because of these developments and has been featured in both local and international media. The book informs legislators and government officials in both Hong Kong and China, judges and lawyers, researchers, and civil society on how the drafting, enforcement, prosecution and adjudication of the national security law (very likely to be introduced before September 2020) can quench China’s worries about national security risks in Hong Kong without jeopardising Hong Kong’s freedoms and autonomy.

What challenges did you face in writing the book?

The first challenge is that the China-Hong Kong relationship develops rapidly so authors have had to constantly update their submissions. For example, when the book was first conceived more than two years ago, we had no idea when national security legislation would be reintroduced in Hong Kong. After we finalised the manuscripts in early 2019, the largest demonstrations in the history of post-colonial Hong Kong occurred, in protest against a proposed extradition law between Hong Kong and China. The protests have implications on any evaluation of the strength of civil society in Hong Kong and render the prospect of China pressing for national security law in Hong Kong more imminent. Some chapters had to be updated last minute to take into account these rapid and radical developments.

The second challenge is that the questions that the book seeks to answer – is it possible to maintain China’s national security without endangering Hong Kong’s rule of law, and if so how – are themselves tough questions to which no comparative experience directly provides a solution. Because of the opposing ideologies embraced by the two jurisdictions (Leninist authoritarianism vs liberal constitutionalism), national security and the rule of law take on very different meanings in the two jurisdictions, reconciliation of which is extremely difficult. Unlike the debate on security and the rule of law in the typical liberal democratic context, where reference to a common set of democratic values to resolve the tension is possible, in the China–Hong Kong context there is no such common frame of reference to appeal to. At the same time, unlike in the typical authoritarian context where normatively appealing solutions may be found in the liberalisation of or secession from the ruling regime, in the China–Hong Kong context there are strong prima facie normative grounds for retaining the “one country, two systems” framework. If the framework is to be retained, then, it is necessary to find ways of preserving the differences between socialist and liberal ideologies within one nation; an arrangement that has no precedent. Any solution to the conflict between national security and the rule of law in the ‘one country, two systems’ context is therefore likely to be autochthonous.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

The questions considered in this collection are obviously of relevance – at both academic and practical levels – to how China’s national security imperatives could be addressed without eroding the distinctiveness of Hong Kong, but their significance goes beyond the immediate context in which they arise. Hong Kong is the only contemporary example of a truly liberal region within an authoritarian state. Although there is an extensive body of literature on how national security can be reconciled with the rule of law, the question of how a liberal subnational unit’s rule of law can be reconciled with an illiberal national unit’s conceptions of national security remains underexplored. Thus, the contributions to his book shed light on the prospects for establishing liberal subunits in illiberal states more generally.

Whilst the book will have direct implications for the building of the rule of law in other Chinese regions (including Macau, the only other SAR of China), they also speak indirectly to other asymmetrical political and economic relationships within which the same kinds of pressures are being applied. These relationships need not be formally constituted in terms of unified statehood. Rather, historical and contemporary political and economic ties between, for example, the Russian Federation and some of its neighbour states, and some of the former states of the former USSR, may result in transnational relationships in which the security concerns of the dominant nation are translated into formal or informal demands and pressures on the other state(s) to introduce “appropriate” security laws. China’s national security strategy explicitly acknowledges that “sovereignty, security and development interests” are intertwined so that the now well-established practice of China investing and lending money, including in very large volumes to support major infrastructure projects in Africa and South Asia, must be understood as being at least in part an instantiation of its broader security agenda. The China-Hong Kong relationship and its working out in and beyond the security space are apposite for our understanding of China’s integrated approach to pursuing security alongside and by means of economic activity.

The book’s reflections on China’s approach to security and its pursuit generally are also of general international and transnational importance, given that China is an important and emerging actor in the international security field, including transnational counter-terrorism. The book therefore contributes to discourse across a wide range of subjects in public law, including central-local relations, security law, human rights law, and Chinese and Hong Kong constitutional law.

What’s next?

The book will be of ongoing relevance as the national security law proposed by Beijing will be drafted, enforced and adjudicated. We will need to continuously evaluate the desirability and viability of the arguments and suggestions in the book as the fraught security relationship between China and Hong Kong unfolds, as the bumpy journey of “one country, two systems” goes on, and as China’s endeavours to become ‘a global leader in terms of composite national strength and international influence’ continue in an uncertain post-COVID world order.