ON 1 JULY 1997, Britain returned sovereignty over Hong Kong to China in one final display of imperial pomp.
At the time, I was a student, attending a lecture at a German university. At the end of the class, the professor surveyed the students and, paraphrasing the words of Sir Edward Grey on the eve of the Great War, solemnly intoned, “Tonight, my friends, the lights have gone out in Hong Kong”.
My immediate reaction was one of slight bemusement at the affable old Bavarian’s words. It didn’t seem like the right analogy: the handover of Hong Kong took place in the context of the One Country, Two Systems framework, whereby the territory would become part of China, whilst retaining its own governmental, legal and economic systems for 50 years.
The professor, however, was right. In the ensuing years, the Chinese Communist Party (CCP) progressively whittled away Hong Kong’s autonomy.
In 2019, an attempt by the chief executive of Hong Kong to introduce an extradition law prompted months of predominantly peaceful demonstrations from millions of Hong Kongers fearful at the prospect of being spirited for trial to the communist-controlled courts on the mainland.
Their protests were brutally suppressed, culminating in 2020 in Beijing’s decision to pass a national security law applicable to Hong Kong which, to all intents and purposes, has snuffed out any semblance of democracy and the rule of law there.
Simultaneously, China has moved to repress the Muslim Uighur minority in its western Xinjiang province, leading to credible fears of genocide borne of reports of ‘re-education’/ concentration camps, forced sterilisation of women, and forced labour.
China has also laid claim to almost the entire South China Sea, a position rejected by the Permanent Court of Arbitration in 2016 in a case taken against it by the Philippines - though China refused to recognise the court’s jurisdiction and has proceeded to militarise the sea by ingeniously turning rocky outcrops and reefs into military bases. At the same time, China has vowed to retake democratic Taiwan, by force if necessary, and its airforce makes almost daily incursions into Taiwanese airspace.
These developments are of deep concern to human rights activists and lawyers in Ireland and around the world.
China, however, has been keen to suppress exposure of its human rights abuses and efforts to hold it to account, employing a variety of strategies to do so. Primarily, it does so by weaponising trade.
Undermining human rights
In simple terms, it does this by making foreign countries dependent on it, either by investing in them or importing from them. Such countries learn to mute criticism of China for fear that their access to investment or export markets will be turned off. This reinforces the CCP’s control over China and prevents awkward questions being asked abroad about the means by which it enforces such control.
How countries deal with China’s behaviour in this regard in the years ahead will be a litmus test of their commitment to human rights.
In Ireland, we are fortunate to live in a country where human rights are protected and vindicated. Our Constitution – Bunreacht na hEireann – explicitly protects a range of fundamental rights, including the right to life, the right to freedom of religion, and the right to freedom of expression. Ireland is also signatory to the main international human rights charters, including the United Nations’ Universal Declaration of Human Rights and the European Convention on Human Rights.
China, however, does not believe that human rights are universal. As the American author Clyde Prestowitz points out in The World Turned Upside Down, the Central Committee of the CCP circulated a dictat in 2013 that ordered that “intense struggle” be waged against a number of specified “false trends”, including western constitutional democracy and universal values of human rights, which it classed, respectively, as “an attempt to undermine the current leadership” and “an attempt to weaken the theoretical foundations of Party leadership.”
No surprise, then, that a number of veteran pro-democracy activists in Hong Kong, including two barristers, 82-year-old Martin Lee, known there as the ‘father of democracy’, and 73-year-old Margaret Ng, were sentenced last April for their participation in the 2019 demonstrations in the city.
Underlining Prestowitz’s point, Sophie Richardson, the China director of Human Rights Watch, wrote in late 2020 about how Chinese authorities fear that the exercise of human rights can directly threaten the party’s hold on power, describing how China is:
“disdainful of international human rights obligations [and] increasingly, also seeking to rewrite those rules in ways that may affect the exercise of human rights around much of the world”.
Richardson explained how, spearheaded by China and aided and abetted by such paragons of human rights protection as Belarus and Syria, the UN Human Rights Council voted in 2020 for a resolution on human rights cooperation which “ignores the responsibility of states to protect the rights of the individual, treats fundamental human rights as subject to negotiation and compromise, and foresees no meaningful role for civil society.”
China subsequently hailed the measure as introducing a new type of international relations and disparaged human rights concerns as simply a means to interfere in a country’s internal affairs.
Silencing
On a more practical level, China has used its commercial muscle to silence those who seek to scrutinise and expose its human rights abuses.
In 2010 the Nobel Peace Prize was awarded to the veteran Chinese democracy activist Liu Xiaobo in recognition of his “long and non-violent struggle for fundamental human rights in China.” In reaction, China detained his wife and boycotted salmon imports from Norway, which saw its share of the Chinese market slide from 90% before 2010 to 30% by mid-2014.
After some abject Norwegian kowtowing, which saw it support China’s successful bid for observer status on the Arctic Council, of all places, relations were restored only in 2016, with the China foreign minister condescendingly concluding that “Norway has deeply reflected upon the reasons bilateral mutual trust was harmed.”
Australia received similar treatment last year after its foreign minister called for an international inquiry into the origins of the Covid-19 pandemic, seeing its beef exports substantially restricted and eye-watering tariffs imposed on its barley trade.
In April, China placed sanctions on a London barristers’ chambers after four of its members prepared a legal opinion which said that there was a credible case that Chinese actions in Xinjiang province amounted to genocide and crimes against humanity.
The sanctions froze the China-based assets of those named (including their family members), and banned them from entering China and from doing business with Chinese persons or companies.
China thus fired a shot across the bows of the legal profession, fully aware of the value to London lawyers of involvement in the lucrative legal market in Hong Kong and the mainland. And the chilling effect of its tactic seems to have worked: the chambers in question subsequently removed the link to the offending opinion from its website and some of its members left to work elsewhere.
China’s actions were condemned in an unprecedented joint statement from “the Four Bars”, namely the Bar of Ireland, the Bar of England and Wales, the Bar of Northern Ireland and the Scottish Faculty of Advocates, which castigated it as an “indiscriminate attack on legal professionals and their close relatives” which was “inconsistent with respect for the rule of law”, “a threat to the global legal community” and “an attack upon the rule of law internationally.”
The statement also pointed out that the sanctions contravened the United Nations’ basic principles on the role of lawyers, according to which lawyers are not to be “identified with their clients or their clients’ causes as a result of discharging their functions.”
The statement of the Four Bars constitutes a welcome rebuff to China’s efforts to muzzle their human rights lawyers and provides a textbook example of how the key institutions and organisations of civic society should mobilise and cooperate with each other to counteract Chinese threats to our freedoms.
Implications for Ireland
Nonetheless, China’s sanctions against the London barristers show that, as part of its strategy to undermine global human rights protection, it will not hesitate to impose collective punishment on lawyers as a whole for the work of their colleagues representing those affected by its human rights abuses.
The potential adverse implications for the legal profession in Ireland are clear.
With Irish exports to China last year exceeding € 10.5 billion, its exposure to China is growing all the time and, in recent years, it has had considerable success in carving out for itself a position in the field of international arbitration. The Irish legal profession, just as much as Ireland itself, is therefore vulnerable to Chinese economic coercion aimed at silencing any criticism of China on human rights grounds.
Whilst it may be tempting for some lawyers to eschew human rights concerns in pursuit of profit-making in China, that would be to enter into a Faustian bargain, whereby human rights remains a meaningless concept in China and is undermined in the rest of the world.
Additionally, the profits to be gained by doing business with China may not be as long-lasting as is commonly supposed, for as the threat posed by its authoritarianism to the foundations of liberal democratic societies becomes clearer, governments will find ways to decouple their economies from it and return investment and jobs to their own countries.
Ultimately, the extent to which we protect and defend human rights tells us who we are as a society.
Lawyers must always be prepared to stand up for the oppressed, in defiance of injustice, and, as in the case of China, against regimes that write laws where human rights count for nothing.
In this regard, there are no better words to sum this up than those of Margaret Ng when defending herself in court in Hong Kong last April. Echoing the great lawyer St Thomas More, she defiantly asserted, “I stand the law’s good servant but the people’s first. For the law must serve the people, not the people the law.”
Anthony Moore is a practising Senior Counsel. He is a graduate of Trinity College, Dublin and Cambridge University, and a member of the Bar of Ireland’s Human Rights Committee.
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