Opinion | National security: Extraterritorial jurisdiction protects Hong Kong from foreign threats

By Grenville Cross

Under its Basic Law, Hong Kong is required to enact laws to prohibit treason, secession, sedition, subversion, the theft of state secrets, and to prohibit the activities of foreign political organizations (Art.23). In 2003, therefore, the government of the former Chief Executive, Tung Chee-hwa, brought forward proposals to implement Art.23, and very mild they were too. They were, nonetheless, opposed by the pan-democratic camp, and criticized by the UK, the US and the European Union.

Although Tung's government bent over backwards to allay concerns, making a series of amendments to its bill and producing three drafts, it was to no avail, and the critics refused to be pacified. Following public protests, and a failure of will, the bill was abandoned, which was a tragedy for Hong Kong. Anti-China forces then stepped into the legal void which resulted, mounting an insurgency in 2019 designed to topple the government, create a constitutional crisis and provoke a showdown with the Central Authorities.

In consequence, the NPCSC (Standing Committee of the National People's Congress) was left with no choice but to enact the National Security Law for Hong Kong, on June 30. In a statement, the CPG (Central People's Government in the Hong Kong Government) Liaison office in the city declared that "no one must underestimate the central government's determination to safeguard national security in Hong Kong", adding that the law would provide strong support for the city "to turn from chaos to stability and restart". This, of course, is precisely what has happened, and the armed mobs, with their violence and destruction, have become a thing of the past, with peace, stability and decency being once again restored to a traditionally peace-loving city.

In Tung's ill-fated bill, the scope of the offenses was restricted. The offenses of subversion and secession were limited to Hong Kong permanent residents, while treason was limited to Chinese nationals, no matter where the crime was committed. These restrictions were reportedly included at the request of foreign governments, many of whose nationals were working in Hong Kong, although they obviously lessened the effectiveness of the proposed legislation. After all, foreigners, no less than permanent residents, can be just as guilty as anyone else of subversive activities, or trying to split the country.

Be that as it may, the National Security Law's Article 38 provides that the prosecution of offenses is limited by neither nationality nor territoriality, and this has upset some people, particularly in foreign parts. It provides that "this Law shall apply to offenses under this Law committed against the Hong Kong SAR from outside the Region by a person who is not a permanent resident of the Region". In other words, it asserts jurisdiction over people anywhere who violate the Law's provisions, whether by conspiring with accomplices in Hong Kong, organizing subversive activities of their own against the city, or otherwise.

Such an approach, however, although unusual, is not unprecedented. Indeed, China's State Security Law (Art.4), punishes individuals and organizations outside its territory who commit acts endangering state security. China's Criminal Law, moreover, applies to Chinese nationals overseas, as well as to foreign nationals outside China who commit offenses against it or its citizens, although this is rarely exercised (Art.8). However, unlike Article 38, China's Criminal Law only covers foreigners outside its territory if the crime carries a minimum sentence of 3 years' imprisonment, and is also punishable "according to the law of the place where it was committed", meaning it must be an offense in both jurisdictions. But Article 38 contains no such restriction.

Most countries have extraterritorial laws that apply to their own citizens, usually for crimes committed in other countries. Under the UK's territorial jurisdiction, for example, suspects can be prosecuted for sexual crimes which occur elsewhere, including crimes against children, while corrupt transactions in foreign places are also prosecutable. Indeed, the UK Bribery Act and the US Foreign Corrupt Practices Act apply to their respective citizens irrespective of where they are located, as well as to foreigners within their own jurisdictions who engage in bribery and corruption.

However, laws like Article 38, which assert extraterritorial jurisdiction over people who are not resident in a particular jurisdiction, are not unknown elsewhere. Countries like Australia and the United States, for example, have established extraterritorial jurisdiction over acts of terrorism. In 2019, the UK enacted its Counterterrorism and Border Security Bill, which extended extraterritorial jurisdiction over some terrorist offenses. The United States is currently seeking the extradition of the Wikileaks founder, Julian Assange, from the UK on various charges, which include the unauthorized release of classified information, contrary to its Espionage Act. It is doing so notwithstanding that Assange is an Australian national, and allegedly committed the offenses outside the US.

The legal basis for the extraterritorial jurisdiction contained in Article 38, and laws like it, is to be found in a rule of international law, known as the "protective principle". It allows a State to assert jurisdiction over a person whose conduct outside its boundaries threatens its vital interests, including its security or governmental functions. The principle can be asserted without regard to where or by whom the act is committed.

In the US, the courts have said that, under the protective principle, "a nation can adopt laws that make it a crime to engage in an act that obstructs the function of government or threatens its security as a state without regard to where or by whom the act is committed" (US v Zehe, D.Mass, 1985). The protective principle has been applied, for example, to attempts to violate US customs laws, thereby becoming an effective means of stopping the flow of dangerous drugs into the country. Thus, in a case where a defendant caught on the high seas was charged with conspiring to import marijuana as well as possessing it, the District Court of Puerto Rico ruled that his planned invasion of the US customs territory entitled the US to assume jurisdiction under the protective principle (US v Keller, D.P.R, 1978). The principle was also invoked to confer jurisdiction over the offense of making a false statement on a visa application at US consulates abroad (US v Rodriguez, S.D.Cal, 1960).

Throughout 2019-20, anti-China forces elsewhere supported the insurgency in Hong Kong, sometimes with finance, sometimes with resources, and sometimes with propaganda. Although, with the enactment of the National Security Law, the insurgents have been thwarted, subversive activities are still continuing in foreign parts, often in conjunction with the city's criminal fugitives. However, those responsible have now been placed on notice that actions have consequences, and that they cannot seek to harm Hong Kong with complete impunity. Once they appreciate the extraterritorial reach of Article 38, it may give at least some of them pause for thought, and this can only benefit the city.

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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