A controversial new national security law for Hong Kong, which was announced at the National People’s Congress (NPC) on May 22 and is expected to bypass the territory’s Legislative Council (LegCo), has sparked fears of an end to the “one country, two systems” formula in Hong Kong and raised the specter of a mass exodus from the embattled territory. Besides casting new doubts on the viability of a similar formula for the “peaceful unification” of Taiwan and China, the draconian—and unexpected—new law could cause headaches for the Tsai Ing-wen (蔡英文) administration as a considerable number of Hong Kong residents are expected to seek asylum in Taiwan.
The new law, which follows nearly a year of violent unrest in the special administrative region (SAR), aims to impose severe punishments for behavior in Hong Kong that threatens national security. These acts would include secessionism, subversion, foreign interference and terrorism, as defined by the central authorities in Beijing. Although Article 18 of the Basic Law stipulates that national laws can only be implemented in Hong Kong if they are listed in Annex 3 of the territory’s mini-constitution and then adopted by LegCo—a process which could take several months—Beijing appears to favor bypassing the legislature altogether, allowing the laws to take effect immediately. While the new laws remain vague at this point, the NPC resolution states that central government authorities related to national security can, if necessary, establish organizations in Hong Kong—a development which would open the door for the presence of mainland public security officers in the special administrative region.
Taiwan’s Conundrum
Although many Hong Kong activists have vowed to remain in the territory and continue to fight for their homeland, it is feared that several thousand residents could seek refuge elsewhere in the period preceding the implementation of the new national security law. For many, Taiwan is a choice destination for exile due to its cultural and geographical proximity as well as its longstanding support for democracy. Amid mounting instability in the past year, 5,858 people from Hong Kong were granted residence permits by Taiwan in 2019, up 40 percent from 4,148 in the previous year, according to statistics from the National Immigration Agency. Of those, 1,474 obtained a Taiwan ID card in 2019, compared with 1,090 in 2018.
At present, Taiwan does not have a refugee law that could apply to asylum seekers from Hong Kong. Consequently, all the cases have thus far been treated on an ad hoc basis. Human Rights activists have called on the Tsai administration to adopt a refugee law which would make it possible for Taiwan to welcome Hong Kong refugees on humanitarian grounds. While Article 18 of the Laws and Regulations Regarding Hong Kong and Macau Affairs (香港澳門關係條例) stipulates that “necessary assistance shall be provided to Hong Kong or Macau residents whose safety and liberty are immediately threatened for political reasons,” this does not include provisions for asylum seekers.
Critics of the Tsai administration within the human rights community have been quick to point out the apparent contradiction between her vocal support for the people of Hong Kong—a rare voice among heads of state throughout 2019—and her administration’s reluctance to adopt new regulations for individuals seeking political asylum in Taiwan. Such criticism will no doubt intensify following the NPC’s announcement of the new national security law for Hong Kong and the expected wave of people looking to flee the territory. Most of the criticism leveled at the Tsai administration’s apparent foot-dragging speculated that it stemmed from timidity and a fear of angering Beijing. Nevertheless on May 28, Tsai denounced the new law after its draft was approved by the NPC and stated that her administration was devising an action plan to provide humanitarian assistance to asylum seekers from Hong Kong.
Indeed, decision makers in Taipei must weigh the consequences of any refugee policy, especially if such policies could have repercussions that are detrimental to Taiwan’s national security. Notwithstanding its humanitarian instincts and strong support for democracy, the Tsai administration does not operate in a vacuum and understands that quickly turning Taiwan into a refuge for Hong Kong activists could destabilize the already tenuous cross-Strait relationship. It is not difficult to imagine Beijing’s reaction should Taiwan suddenly turn into a base from which thousands of Hong Kong activists plan and orchestrate activities that, from the Chinese perspective, seek to undermine the stability of the SAR and China’s national security. The government cannot ask its society to bear the costs of the punitive measures that would inevitably follow unless it has secured assent from its citizens (in an opinion poll released on May 31, 60 percent of respondents said they favored legal amendments to make it easier for asylum seekers from Hong Kong to obtain refuge in Taiwan). Becoming embroiled in another nation’s affairs, especially if doing so endangers one’s national security, is not a decision that should be taken lightly. President Tsai’s responsibility is first and foremost to the 23.8 million people who put her into office, not to the people of Hong Kong. By no means does this suggest that her government should turn a blind eye to the travails of the troubled SAR—far from it. But it would be unfair to expect her to act with unrestrained altruism, in a way which risks threatening the welfare of the country she governs.
Rather than risk the publicity that implementing a refugee law and subsequently welcoming a large influx of political refugees from Hong Kong would conceivably generate, Taipei has chosen instead to quietly treat them on a case by case basis, an approach which is much less likely to spark a retaliatory response from Beijing. Furthermore, it is not altogether implausible that more concrete measures, such as the passage of a refugee law, would compel Hong Kong and Beijing authorities to shut the border altogether and thereby prevent the exodus of any prospective Hong Kong refugees to Taiwan. Though imperfect and frustrating to human rights activists and the Hong Kong people themselves, the quiet approach, therefore, was probably the best option under the prevailing circumstances.
Besides the potential impact on relations between Taipei and Beijing, more pragmatic reasons also likely influenced the Tsai administration’s decision to retain an ad hoc strategy. Before opening the floodgates to refugees, a recipient country must ensure that it has sufficient infrastructure—lodging, employment, education, health insurance, and so on—to accommodate a sudden large influx of individuals seeking asylum. Alternatively, agreements with a third country must be in place so that, if needed, Taiwan could serve as a transit point for refugees seeking to relocate to another safe destination. It is unclear whether such mechanisms exist at this point.
A Whole New Game
The NPC bombshell will undoubtedly renew calls for the Tsai administration to enact a refugee law to provide humanitarian assistance to Hong Kong asylum seekers. Furthermore, the seriousness of the new conditions created by the new national security law unquestionably calls for a reassessment of what Taiwan can and should do.
Following the NPC’s announcement on May 22, President Tsai in a May 24 statement hinted that the new situation could compel her government to raise Article 60 of the Laws and Regulations Regarding Hong Kong and Macau Affairs (香港澳門關係條例), which stipulates that “should any change occur in the situation of Hong Kong or Macau such that the implementation of this Act endangers the security of the Taiwan Area, the Executive Yuan may request the President to order suspension of the application of all or part of the provisions of this Act pursuant to Article 2, Paragraph 4, of the Additional Articles of the Constitution.” Essentially, Tsai threatened the suspension of a legal framework which, in theory, links Taiwan to the Hong Kong and Macau SARs—and therefore to “one China.” In the subtle messaging that constitutes cross-Strait relations, any signal by Taipei that suggests a decoupling from longstanding ties—as the removal of a decades-old article of the law certainly would—can serve as a warning that the “status quo” in relations is in trouble. In this case, it serves to reinforce the message that, rather than a special bond or relationship, Taiwan would treat Hong Kong as it normally would any other foreign state or part thereof. While expressing her hopes that it would not come to this, raising Article 60 was ostensibly a means of giving her government wiggle room to avoid being legally forced to take action as per Article 18 and provide “necessary assistance […] to Hong Kong or Macau residents whose safety and liberty are immediately threatened for political reasons.”
Besides sending a signal of concern to Beijing, Tsai’s statement likely reaffirmed her commitment to an ad hoc approach to the potential influx of Hong Kong refugees. This does not mean that her administration has no intention of providing the necessary assistance to the embattled people of Hong Kong. Rather, it is meant to avoid Article 18 or other legal “obligations” dragging Taiwan into a course of action that could have serious repercussions for Taiwan’s national security, especially at a time when Beijing has adopted a much more belligerent stance toward Taiwan following Tsai’s re-election in January. Even without Article 18, Taiwan can continue to welcome immigrants from Hong Kong, and in fact could potentially increase that number. Through her statement, President Tsai likely sought to ensure that she would continue to have sufficient flexibility in her approach to the crisis in Hong Kong. In turn, this helps ensure that her administration can keep a balance between humanitarian considerations and the kind of pragmatism that, thus far, has prevented a serious crisis in the Taiwan Strait.
Despite the escalation that the new national security law unveiled by the NPC represents, Taiwan must continue to react carefully to the situation in Hong Kong. This means the continuation of an ad hoc approach to the refugee question. While this lacks the moral clarity of an actual refugee law and exposes the Tsai administration to future accusations of moral cowardice, this arguably remains the least bad option, one that reduces the risks of retaliation from China while continuing to provide humanitarian assistance to residents of Hong Kong fleeing persecution.
The main point: An escalating crisis in Hong Kong and the surprise announcement of a new national security law by Beijing will create additional pressure on the Tsai Ing-wen administration to provide humanitarian assistance to the potential targets of Beijing’s crackdown. While Taipei should do everything it can to support the people of Hong Kong, a pragmatic approach remains essential.