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What's the chance of sanctions on HK officials under the HK H.R and Democracy Act?

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  1. #31

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    Quote Originally Posted by nivek2046:
    Can the United States arrest Hong Kong or Chinese officials like they did with Huawei's Meng Wanzhou, while transiting Canada or Australia or any country with an extradition treaty with the USA?
    By arrest you mean arrest for committing a crime? That would be different to sanctions. As government officials they would be protected by diplomatic immunity. Huawei's Meng was a private citizen. Once these officials step down then theoretically they could face prosecution however. But that depends on whether they have violated any US laws, usually on US soil (but there are exceptions to that), involving transaction with US currency going through a US financial institution.

    There is a category called universal jurisdiction where regardless of the nationality of the accused, or the place where the crime took place, they can be prosecuted. But those were traditionally limited to piracy, because pirates often commit their acts on the high seas away from territorial waters. Now some are arguing this should be extended to war crimes like genocide, mass rape, brutalizing civilians, etc, although that has received pushback from other states.
    Last edited by Coolboy; 19-06-2020 at 12:35 PM.
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  2. #32

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    Quote Originally Posted by Coolboy:
    As government officials they would be protected by diplomatic immunity. .
    Do they? According to https://en.m.wikipedia.org/wiki/Diplomatic_immunity
    they have to represent a sovereign...HKSAR is not a sovereign and it's a long stretch to say that - say Teresa Cheng - is a diplomat representing the PRC
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  3. #33

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    Quote Originally Posted by alexdown:
    Do they? According to https://en.m.wikipedia.org/wiki/Diplomatic_immunity
    they have to represent a sovereign...HKSAR is not a sovereign and it's a long stretch to say that - say Teresa Cheng - is a diplomat representing the PRC
    But HKSAR government is part of China, for all intents and purposes they are treated as representative of a recognized entity called "Hong Kong" in the name of Beijing. Even if US revokes its recognition of HK autonomy, HK officials would be treated as regional officials rather than from the Central government, but nevertheless still enjoying immunity.

    Besides I struggle to find what kind of charges the US would prosecute these HK officials. They might uncover some nefarious transactions using US dollars in a US institution, as was the case with Patrick Ho, but even so, he was a former official, not a current one. And these officials would have to be physically in the US, or in a country where extradition is likely.

  4. #34

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    Quote Originally Posted by Coolboy:
    But HKSAR government is part of China, for all intents and purposes they are treated as representative of a recognized entity called "Hong Kong" in the name of Beijing. Even if US revokes its recognition of HK autonomy, HK officials would be treated as regional officials rather than from the Central government, but nevertheless still enjoying immunity.
    No, only principal government officials enjoy "functional immunity" in most countries automatically. Head of state, head of government, senior cabinet members, foreign minister, defence minister and ambassadors. All other persons like consuls or employees of embassies enjoy "personal immunity" only in the country they have been posted to and usually only after the host country has confirmed that. The Chinese consul general posted to Munich enjoys no immunity in Austria. For example Chinese law only gives immunity to foreign officials who hold a Chinese diplomatic visa or are from a state where mutual agreement does not require diplomatic visa. The law also spells out that heads of state and comparable officials enjoy automatic immunity and so do officials stationed in a third country when travelling though China together with their spouse and children.
    HK government officials don't enjoy any kind of immunity, same as the mayor of Shenzhen doesn't. I don't think HK even has diplomatic passports.
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  5. #35

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    Quote Originally Posted by mrgoodkat:
    No, only principal government officials enjoy "functional immunity" in most countries automatically. Head of state, head of government, senior cabinet members, foreign minister, defence minister and ambassadors. All other persons like consuls or employees of embassies enjoy "personal immunity" only in the country they have been posted to and usually only after the host country has confirmed that. The Chinese consul general posted to Munich enjoys no immunity in Austria. For example Chinese law only gives immunity to foreign officials who hold a Chinese diplomatic visa or are from a state where mutual agreement does not require diplomatic visa. The law also spells out that heads of state and comparable officials enjoy automatic immunity and so do officials stationed in a third country when travelling though China together with their spouse and children.
    HK government officials don't enjoy any kind of immunity, same as the mayor of Shenzhen doesn't. I don't think HK even has diplomatic passports.
    No, "under modern doctrine and practice of international law, ‘state function’ has replaced ‘sovereignty’ as the rationale and standard of immunity" (Mushkat, 1997, p.37). In other words, its not sovereignty that determines immunity but whether that entity possess functions of a state, which HK does have in limited capacity. It has a degree of international legal personality that a purely domestic non-state entity does not possess. So immunity does extend to HK officials, as stated by ex-HKU law professor:

    The territory is similarly entitled to privileges and immunities afforded under general international law to entities discharging governmental functions, including immunity from jurisdictionof foreign domestic courts without the express consent of the Hong Kong government as well as reciprocal privileges and immunities for its official representatives. (Mushkat, 1997, p.37).

    China also rejects the doctrine of restrictive immunity, where immunity is granted only to sovereign acts (the previous position in common law in HK). They reject the idea that foreign governments can be sued in HK courts as incompatible with sovereign equality. In practice, they have sign treaties that have restricted immunity in some cases, but in general, they are opposed to that position. And the Vienna Convention explicitly states that immunity extends to consular officials and employees from local jursidiction. It is limited only to officials acts and more resticted than diplomatic immunity, but there is immunity. China also blurs distinction between state officials and employees of state-owned enterprises.

    However, HK can be liable or held responsible for failure to fulfil obligation to international treaties to which it is a party. But its question mark whether that liability would not fall on individual HK officials but the government as a whole. It may also be liable to infringement of customary international law. But again who will enforce this breach of responsibility? The US? On what basis?
    Last edited by Coolboy; 19-06-2020 at 09:46 PM.
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  6. #36

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    Quote Originally Posted by Coolboy:
    No, China rejects the doctrine of restrictive immunity, where immunity is granted only to sovereign acts (the previous position in common law in HK). They reject the idea that foreign governments can be sued in HK courts as incompatible with sovereign equality. In practice, they have sign treaties that have restricted immunity in some cases, but in general, they are opposed to that position. And the Vienna Convention explicitly states that immunity extends to consular officials and employees from local jursidiction. China also blurs distinction between state officials and employees of state-owned enterprises. So immunity does extend to HK officials.

    However, HK can be liable or held responsible for failure to fulfil obligation to international treaties to which it is a party. But its question mark whether that liability would not fall on individual HK officials but the government as a whole. It may also be liable to infringement of customary international law. But again who will enforce this breach of responsibility? The US? On what basis?
    Those are two completely different things. And again, coz you can't read, immunity does not extend to employees of state owned enterprises, HK government officials or even to provincial governors. Everyone who is not a principal minister on a state level does not have automatic immunity. Rule of thumb: If you aren't at least as high up as the foreign or defense minister you aren't getting automatic immunity.
    Getting a service passport issued by China and having your immunity confirmed by the receiving state are two completely different things. As Meng Wanzhou, who was issued a Chinese Public Service passport, clearly shows.

  7. #37

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    Quote Originally Posted by mrgoodkat:
    Those are two completely different things. And again, coz you can't read, immunity does not extend to employees of state owned enterprises, HK government officials or even to provincial governors. Everyone who is not a principal minister on a state level does not have automatic immunity. Rule of thumb: If you aren't at least as high up as the foreign or defense minister you aren't getting automatic immunity.
    Getting a service passport issued by China and having your immunity confirmed by the receiving state are two completely different things. As Meng Wanzhou, who was issued a Chinese Public Service passport, clearly shows.
    I can read, thank you very much. It is you who need to read my post above, again. Specifically the quote. HK government officials do have immunity. The law professor states so specifically. Who do I trust more, a law professor who specialize in international law or you? I think I will go with the law professor. Meng was a private citizen, she was a senior executive at Huawei, NOT a Chinese government official, the public service passport does NOT change her status. In fact to claim any goverment immunity for Meng would undercut Huawei as an independent company and not an extension of the PRC state. Doing so would mean the US argument that Huawei is just a part of the Chinese state is correct. China would not make that argument. Nor would Huawei.

    I have a clear source. You do not. The recognition by foreign governments to HK officials immunity is not automatic for a non-sovereign entity like HK that is true, but the recognition in practice is extended to HK officials. Do you think HK would otherwise extend state immunity to foreign government entities in HK if HK officials do not enjoy reciprocal privileges in foreign states? Go and ask a HK senior government official if they have immunity or not on foreign shores.

    Next time don't cherry pick my post and ignore the crucial quotation. That damages your credibility.
    Last edited by Coolboy; 19-06-2020 at 10:09 PM.

  8. #38

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    Quote Originally Posted by Coolboy:
    Next time don't cherry pick my post and ignore the crucial quotation. That damages your credibility.
    You clearly said that HK officials have immunity because they are Chinese officials, even if the US revoked HK's privileges which is clearly not true. They are not state level officials and thus don't enjoy immunity automatically conferred to state level officials. Representatives of the HK government in the US receive their immunity from Title 22 where HK is specifically mentioned as having immunities afforded to international organizations, like the Red Cross. The immunities are similar to diplomatic immunity but slightly different. For example they can be withdrawn by executive order alone. Also if the US rescinds the special treatment if HK they'll get zilch.

  9. #39

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    Quote Originally Posted by mrgoodkat:
    You clearly said that HK officials have immunity because they are Chinese officials, even if the US revoked HK's privileges which is clearly not true. They are not state level officials and thus don't enjoy immunity automatically conferred to state level officials. Representatives of the HK government in the US receive their immunity from Title 22 where HK is specifically mentioned as having immunities afforded to international organizations, like the Red Cross. The immunities are similar to diplomatic immunity but slightly different. For example they can be withdrawn by executive order alone. Also if the US rescinds the special treatment if HK they'll get zilch.
    Don't try to change the subject. You said clearly, in your own words: "HK government officials don't enjoy any kind of immunity, same as the mayor of Shenzhen doesn't." That is clearly wrong as I have proven. HK officials do enjoy immunity. Not conferred automatically, but they do in practice receive reciprocal privileges in immunity from prosecution in the respective foreign jurisdiction.

    US said they will rescind recognition of HK autonomy. That is casting a wide net. They didn't say what area. They might rescind only part of that recognition, for example in preferential tariffs. But less likely in immunity. Why? Because if the US remove immunity from HK officials, then HK, or more likely China, can retaliate and do the same. China has leverage there.
    Last edited by Coolboy; 19-06-2020 at 10:29 PM.

  10. #40

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    Quote Originally Posted by Coolboy:
    Don't try to change the subject. You said clearly, in your own words: "HK government officials don't enjoy any kind of immunity, same as the mayor of Shenzhen doesn't." That is clearly wrong as I have proven. HK officials do enjoy immunity. Not conferred automatically, but they do in practice receive reciprocal privileges in immunity from prosecution in the respective foreign jurisdiction.
    Fair enough, I didn't actually check if they had immunity conferred anywhere before writing that. Let's just put it down as talking about two different things before we continue going around in circles about who is more wrong.
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