The Protective Jurisdiction Under the Hong Kong National Security Law: Legitimacy and Impact

Abstract

Abstract The Hong Kong National Security Law is not only applicable in Hong Kong, it has global reach, applying to any breach of its provisions by anyone, regardless of nationality or location. Article 38 of that law expressly states that it is applicable worldwide for offences committed against Hong Kong “from outside the Region by a person who is not a permanent resident of the Region”. Its legal basis is protective jurisdiction, which permits a State to exercise jurisdiction over aliens who have committed an act abroad jeopardising the vital interests of that State. Protective jurisdiction is justified because a State has the right to defend and protect its vital interests. The protection of such interests cannot be left to other States that do not consider such interests to require the protection of criminal law. For these reasons, international law does not impose limits on a State to prescribe rules to assert such jurisdiction. Despite the justification, it is believed that the impact of Article 38 will be limited in practice. It would be difficult for Hong Kong to obtain international cooperation in enforcing this law, given that there are only 19 countries having extradition agreements with Hong Kong (with nine of them having now suspended their agreements) and that it may also require great effort to overcome the legal hurdles, i.e., the extradition refusal grounds, such as the double criminality requirement, non-extradition of nationals of the requested countries, and the political offence exception contained in these extradition agreements.