The Curious Case of Disappearing Booksellers: A Conflict of Sovereignty between China and Hong Kong
Angela Ni Vol. 37 Associate Editor Vol. 38 Managing Note Editor
Free speech and separation of political spheres in China have always been tenuous. Publishing houses and bookshops in Hong Kong have spent years churning out books banned on the Chinese mainland, often focusing on poorly sourced secrets and rumors about the top echelons of China’s ruling Communist Party.[1] However, the recent arrest of five Hong Kong citizens, who published books that revealed critical and salacious information regarding the Chinese leadership, ignited citywide protests and debates about Hong Kong’s true political status.[2] One of the booksellers, Lee Bo, disappeared from his warehouse in December 2015 when his publishing company was to publish a book on Chinese president Xi Jinping’s alleged love affairs before his political ascent.[3] Since the United Kingdom handed over sovereignty of Hong Kong to China in 1997, the “one-country, two-systems” regime has consistently come into political and legal controversy. Hong Kong has markedly disparate laws from China, which is the result of a 50-year compact between China and the UK, which administered Hong Kong before the handover, known as Basic Law.[4] Under Basic Law, Chinese legal authorities have no jurisdiction in the city.[5] Furthermore, it guarantees rights such as freedoms of speech in Hong Kong, which are not allowed in China. However, within the last five years, China has become increasingly stringent in its exercise of sovereignty over Hong Kong. In 2014, it issued an unusual publication of a targeted positions paper, also known as the “white papers”, in order to reiterate its full dominion over all Hong Kong affairs.[6] Furthermore, it claimed that “as a unitary state, China’s central government has comprehensive jurisdiction over all local administrative regions, including the HKSAR”.[7] The recent arrest of the five booksellers only proves that China is beyond willing to reinforce its assertion of sovereignty. Legally, if the booksellers crossed the border of their own volition, there would be no Basic Law violation. Furthermore, it would also not be in violation of Basic Law if they were taken by private actors because private individuals unconnected to the Chinese government who were involved in forcing or persuading Lee to cross the border are not state actors under international law.[8] However, in this instance, the Chinese government seems to be implicated in at least one of the bookseller’s entry into China. In January 2016, one of the booksellers, Lee Bo, issued a statement that he is “assisting an investigation” in mainland China.[9] However, even if mainland officials were involved, this does not necessarily mean the Basic Law was breached because there are grey areas when it comes to cross-border criminal investigations. Certainly an abduction and forced rendition by mainland officials would constitute a serious infringement of the “one country, two systems” principle, but there are multiple ways to induce someone to cross the border without being in violation of international law or Basic Law.[10] Currently, there is no international standard among countries as to whether forcefully “luring” a suspect to enter the physical jurisdiction of the arresting state is a violation of international law. In the United States, the Supreme Court has sanctioned the practice under United States v. Alvarez-Machain, but other countries have objected to it.[11] In Hong Kong, the official legal stance is that “only legal enforcement agencies in Hong Kong have the legal authority to enforce laws in Hong Kong”.[12] But its particular position regarding this incident is more nuanced as Hong Kong clarified by stating that “except properly permitted under our laws, neither unauthorized criminal investigation nor unlawful arrest within the jurisdiction by anyone or any authority shall be tolerated”.[13] In turn, the legality of China’s abduction depends wholly on whether the abduction is “unauthorised”.[14] Under Basic Law, mainland Chinese liaison, foreign affairs and military ministries are indeed authorized to carry out official duties in Hong Kong’s sovereign territories so long as they remain compliant with local Hong Kong laws.[15] Meanwhile, China’s legal argument centers on the assertion that it is conducting a criminal investigation into the spreading of rumors and slander to subvert state power, which is a national security offence. Furthermore, it argues that its monitoring and detainment of suspects for national security offences are merely incidental to its liaison, foreign affairs, and military duties, and thereby allowable under Basic Law. However, these arguments remain be speculative as there has never been a definitive international legal guidance on how much China can interfere with Hong Kong’s affairs and citizenry. Ideally, there would need to be a revision of the Basic Law to reflect political realities in order to adequately address the murky gray area of Hong Kong’s sovereignty.
[1] Euan McKirdy, Demonstrators Take to Hong Kong’s Streets to Protest Missing Booksellers, CNN (Jan. 11, 2016), http://www.cnn.com/2016/01/10/asia/hong-kong-missing-bookseller-demonstration/. [2] Id. [3] Id. [4] Id. [5] This is best exemplified by recent court decisions regarding the validity of exclusive jurisdiction clauses in private Hong Kong-China litigations. See Hyundai Engineering & Construction Co., Ltd. v UBAF (Hong Kong) Limited and Bank of China Limited (2012) HCA 175/2012 (H.K.). [6] Chester Yung, China Reminds Hong Kong of Its Control, Wall St. J., June 10, 2014, http://www.wsj.com/articles/china-reminds-hong-kong-of-its-control-1402411342. [7] Id. [8] See Mohammed H Zarei, The Status of Non-State Actors under the International Rule of Law: A Search for Global Justice (2014), available at http://www.culturaldiplomacy.org/academy/content/pdf/participant-papers/2014-04-lhrs/Dr_Zarei_and_Azar_Safari_-_The_Status_of_Non-State_Actors_under_the_International_Rule_of_Law-_A_Search_for_Global_Justice.pdf. [9] Supra note 1. [10] Internationally, foreign abductions are frowned upon by state actors. However, it is generally agreed upon that non-state actors functioning non-state roles are not subjects to international sanctions regarding foreign abductions in relations to a crime committing against a state. For comparison, see Jonathan A. Bush, How Did We Get Here? Foreign Abduction After Alvarez-Machain, 45 Stan. L. Rev. 939-983 (1993), available at http://www.jstor.org/stable/1229200. [11] Id. at 940. [12] James Lillywhite, Hong Kong: Politicians Call for Guarantee of Autonomy from China after Critics Disappear, International Business TImes, Jan. 4 2016, http://www.ibtimes.co.uk/hong-kong-politicians-call-guarantee-autonomy-china-after-critics-disappear-1535932. [13] Id. [14] Basic Law [Constitution] July 1, 1997, art. 13 [H.K.], available at http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf; Id. at art. 18. [15] Id.
