In March 2023, a Hong Kong student at a Japanese university was arrested for allegedly inciting secession, based on Article 20 and 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Hong Kong national security law), sending shockwaves across Japan and the international community. The Hong Kong Police National Security Department detained her when she returned to Hong Kong to renew her ID. According to reports, about two years ago while studying in Japan, she made social media postings including slogans like “Hong Kong independence, the only way out” and photos in support of student demonstrations in Hong Kong.

The application of a law is limited to acts within the country’s territory. In a sovereign state, the principle of territoriality is the general rule. In this case, if the alleged acts were committed during her stay in Japan, applying the Hong Kong national security law to the student falls under the “extraterritorial application,” an exception to the territoriality principle. The Hong Kong national security law has stipulated provisions for extraterritoriality not only for Hong Kong nationals, but also for everyone in the world.

This article will delve into the meaning of the Hong Kong authorities (and the Chinese government and the Communist Party [CCP] behind it or in solidarity with it) charging a young Hong Konger for her speech through extraterritorial application of the national security law.

The Emotion Woven into the National Security Law

I heard the news of the Hong Kong student’s arrest with a mixed feeling of indignation and resignation. For a believer of liberal democratic values, the arrest was an abominable behavior, but given the logic and structure of the Hong Kong national security law, it was highly probable.

On how the Hong Kong national security law was formulated and the structure and the content of the provisions, there are already a certain amount of research in Japan too (Ken Suzuki, “The Hong Kong Version of the National Security Law and the Direction of ‘One Country, Two Systems,’” Monthly Jurist vol. 1549, Ken Suzuki, “What Will Change in Hong Kong with the Hong Kong Version National Security Law?” Hogaku Seminar vol. 789, Makoto Tajimi, “The Hong Kong National Security Law: A New Departure for the “Rule of Law,” The Hitotsubashi Journal of Law and International Studies vol. 19, no. 3, Noriko Hiroe, “Overview of the Hong Kong National Security Law: Ambiguous Texts and Their Range,” Bulletin of Daito Bunka University; Social Sciences vol. 60 [Part 1], vol. 61 [Part 2]).

The demonstration against the extradition bill that began in 2019 gradually developed into protests and criticism against not only the Hong Kong authorities but also the Chinese government and the CCP. The alarmed Chinese government and the CCP decided to enact legislation to suppress the Hong Kong citizens’ liberal democracy movement and attain their version of “national security” in Hong Kong. Since the policy was announced in the fall of 2019, legislative work proceeded behind closed doors at a rapid pace, and on June 30, 2020, the Hong Kong national security law was enacted, promulgated, and enforced.

The Hong Kong national security law comprises six chapters of “General Principles,” “The Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security,” “Offences and Penalties,” “Jurisdiction, Applicable Law and Procedure,” “Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region,” and “Supplementary Provisions ” and 66 articles. The prominent features of the law are the criminal provisions of four political offenses of secession, subversion, terrorist activities, and collusion with a foreign country or with external elements to endanger national security, and the establishment of Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region (OSNS) and other means which allowed more room for central government intervention.

In relation to this article, I must also point out that an extremely strong wariness toward interference by external forces exists throughout the Hong Kong national security law, as the sentiment of the Chinese government, CCP, and Xi Jinping himself. They firmly believe that behind the Hong Kong civilians’ liberal democratic movement, there is intervention by foreign forces. In the “Collusion with a Foreign Country or with External Elements to Endanger National Security” offense, it specifies those imposing sanctions or blockade, or engaging in other hostile activities against Hong Kong or China as guilty of an offense, in which organizations and individuals outside the territory will also be punished as an accomplice (Article 29). The OSNS will take necessary measures to strengthen the management of and services for organs of foreign countries and international organizations in the Region, as well as non-governmental organizations and news agencies of foreign countries and from outside the mainland, Hong Kong (Article 54), and will exercise jurisdiction over a case concerning offense endangering national security with involvement of a foreign country or external elements (Article 55). If the case involves foreign factors, it may be tried without a jury (Article 46).

Extraterritorial application is also in line with this context. In places outside Hong Kong, the law will apply if a permanent resident or non-resident (foreigner) of Hong Kong commits an offense regulated by the Hong Kong national security law (Article 37, 38).

In short, we should understand that even outside the territory, the Hong Kong authorities (CCP government) had a firm intent to punish anti-Chinese behavior, and the provisions of the Hong Kong national security law had already made it possible. We need to be aware that although the Hong Kong national security law applies to Hong Kong, it is undoubtedly a Chinese law.

The Problem with Extraterritorial Application

According to a detailed study by Noriko Hiroe, a scholar on Hong Kong law, there are already several cases of the national security law being applied outside Hong Kong, such as a British human rights organization demanded to shut down its website (March 2022, Article 29: Collusion with a Foreign Country or with External Elements) and a Hong Konger who planned to establish a “Hong Kong Parliament” abroad listed as a wanted suspect (August 2022, Article 22: Subversion). In the latest Hong Kong student case, we could say it was the first time that online postings in Japan were considered an offense and led to arrest and prosecution.

Since the extraterritorial application of the law requires the involvement and exercise of governmental authorities, most occur in the areas of public law such as criminal law, administrative law, and economic law. It is not a system unique to China, nor is it an issue that emerged recently. In China, related provisions exist in the Criminal Law (July 1979), Anti-monopoly Law (August 2007), Export Control Law (October 2020), and Personal Information Protection Law (August 2021). Japanese firms also have strong concerns about the extraterritorial applications of these economic laws.

So, what is the problem with the extraterritorial application of the Hong Kong national security law? It is true that Japanese criminal law also adopts the personal principle and protectionism as exceptions, while based on the principle of territoriality. To the critical concerns by the Western nations and international human rights NGOs, the Hong Kong authorities argue that the extraterritorial effect of the Hong Kong national security law conforms to the principle of “protective jurisdiction” and also corresponds to the international custom. Can this counterargument be justified?

One problem is that the content and application of Hong Kong national security law are vague and unclear. Although the law claims to adhere to the principle of the rule of law (Article 5), the four punishment provisions for the political penalties are all broad and ambiguous. The authorities can interpret anything as obstruction, disruption, assistance, or support. The word “other” is frequently used, which can encompass any act or situation. In fact, it is not even clear what “national security” means when it refers to “safeguarding national security.” It is not clear what acts are punishable as crimes. And such criminal provisions can be applied not only within Hong Kong but also outside the territory. This has a great chilling effect.

Another problem is the excessive extraterritorial application of the Hong Kong national security law. In Japan, the application of Japanese criminal law to Japanese nationals or foreigners committing crimes outside Japan is quite limited. In particular, the application of the Japanese Criminal Law to foreigners outside Japan is limited to very few cases, such as civil disturbance, foreign aggravation, and currency counterfeiting. Speech acts of Japanese and foreign nationals outside Japan are not punishable under Japanese criminal law, except for defamation by a Japanese national. Even the Chinese Criminal Law imposes conditions for extraterritorial application. For Chinese nationals, the criminal law need not be pursued if the statutory maximum penalty for the offense is an imprisonment of not more than three years, and for foreigners, the criminal law may be applied if the statutory minimum penalty is a term of not less than three years, but not if the offense is not punished under the law of the place of offense (Article 7, 8). In other words, since publishing speech critical of the Chinese government in Japan does not constitute a crime in Japan, the Chinese Criminal Law cannot be applied under this law.

However, there are no such conditions under the Hong Kong national security law. Extraterritorial application is unlimited. International law scholar Hiroyuki Banzai states that the concept of “protectionism” is an exception, applying to crimes that are prohibited in any country, such as currency counterfeiting, and to serious crimes concerning national sovereignty. The extraterritorial application of Hong Kong national security law to criminalize speech is against the common practice of the international community (HuffPost Japan edition, October 21, 2020). This is why, since the Hong Kong national security law was enacted, the U.K., Australia, Germany, France, and others have successively suspended their criminal extradition treaties with the country.

What It Means to Incriminate Speech

In June 2023, the Hong Kong student was charged under the sedition offense (Article 10) of Crimes Ordinance , instead of the Hong Kong national security law. The statutory penalty is a fine and two years’ imprisonment. The Crimes Ordinance is a law enacted during the British colonial era and is Hong Kong’s criminal law. There is no explicit provision for extraterritorial application, so it remains to be seen under what law structure the prosecutor will prove the guilt. (Postscript: she was sentenced to two months’ imprisonment on November 3, 2023.) It is important to note here that although the Hong Kong national security law was not used in the prosecution, the Hong Kong authorities showed its willingness to firmly prosecute speech crimes.

In countries with liberal democratic constitutions and political systems, freedom of speech is the cornerstone of maintaining and developing democracy. Restricting speech based on the content of its viewpoint is unacceptable in principle. And even when restricting speech, there must be a strict questioning of whether the purpose is legitimate, and the controlling means is critical. Hong Kong also shared the value and importance of free speech, before and after the handover to China, albeit to a limited extent. The fact that since the leftist riots of 1967, the above seditious offence of the Crimes Ordinance was never used until the enactment of Hong Kong’s National Security Law is a clear indication of this (Eric Yan-ho Lai, “Hong Kong’s Sedition Law is Back,” The Diplomat September 3, 2021). So, originally in Hong Kong, speech was not subject to punishment.

In contrast, China totally rejects the political system of liberal democracy. The logic of the Chinese government and the CCP goes like this: the CCP led the people to a great revolution and established a socialist state under a people’s democratic dictatorship; Yet, the state and regime remain unstable and are under constant threats by various domestic and foreign hostile forces plotting destruction and subversion; Thus, the Chinese people must continue to wage a hard struggle against these opposition elements, i.e., “counterrevolutionary elements,” at home and abroad. The core mission of the criminal law is the struggle against counterrevolution. Speech was divided into three types according to its content: speech that contributes to the state and regime, wrong speech, and reactionary (counterrevolutionary) speech. Reactionary speech was strictly accused of a crime.

To this logic by the Chinese government and the CCP, and the legal system that reflects it, domestic intellectuals and legal scholars have raised various questions and criticism. Shouldn’t there be a distinction between speech and conduct? Could restricting speech restrict the exchange, maturity, and development of thought? Wouldn’t it be difficult to establish criteria for determining what speech to punish? Yet, the CCP would heed to none of this. Many democratic activists and intellectuals, including Wei Jingsheng, Wang Dan, and Liu Xiaobo, were convicted for what they said.

Today, the term “counterrevolution” no longer exists in the Constitution and the Criminal Law, but the fundamental logic remains unchanged. From the 1990s to the 2000s, required to build a legal system compatible with the market economy, the Chinese government and the CCP worked to improve the law’s predictability and to control its arbitrary application. During this period, there were moves to minimize the room for political judgment and consideration in the interpretation and application of laws. However, the current Xi Jinping administration’s policy is to stretch the “leadership of the CCP” to the limit. The stronger the CCP’s “leadership,” there will be more political decisions and considerations when interpreting and applying the law, thus impairing its stability and predictability. We are seeing the ghost of the “counterrevolutionary struggle” reemerge in the new guise of “maintaining national security.” We must be firmly aware that the enactment of the Hong Kong national security law means the logic of the Chinese government and the CCP mentioned above is being extended to Hong Kong.

Chinese law scholar Ken Suzuki calls for the international community to provide a place where freedom-seeking Hong Kong residents can emigrate and work. The Japanese government and society must be prepared to defend liberal democracy.

This is a translation of the Japanese article published in vol. 80 (Jul./Aug. 2023) of the Gaiko (Diplomacy) magazine.

Jin Ishizuka is a professor at the University of Yamanashi. He has earned a Ph.D. in law from Hitotsubashi University and specializes in Chinese modern law and comparative constitutional law in Asia. Previously, he has been a research associate at Waseda University. He is the author of Gendai chugoku to rikken shugi [Modern China and Constitutionalism], coauthor of Higashi ajia no keijishihou, hokyoiku, houishiki [Criminal Justice, Law Education, and Law Awareness in East Asia], and translator of Genron no jiyu to chugoku no minshu [Freedom of Speech and Democracy in Contemporary China] and other books.