Holding citizens legally accountable for their actions while overseas has been a source of diplomatic tension since ancient times. This is perhaps no more true than in today's highly connected, globalised world. In 2020, China introduced legislation in Hong Kong, commonly referred to as the “National Security Law”, that establishes a range of criminal offences, including inciting or supporting the “undermining” of the “basic system” of China.
Some of these offences apply (extraterritorially) outside Hong Kong and China – in most instances, for citizens or Hong Kong residents. In 2023, for example, Hong Kong police issued arrest warrants for eight overseas activists under the National Security Law.
Under international law, it is generally accepted that a country can regulate the conduct of its citizens overseas.
The topic of China’s role in contemporary geopolitics has been much mused upon in security scholarship. Less attention has been given to the soft (and often hard) power exercised in discharging extraterritorial legal authority and the global mobility this lends a state’s legal architecture. However, in order to understand China’s place in geopolitics, we should also understand this important aspect of its legal system.
Many states the world over exercise extraterritorial jurisdiction for a plethora of reasons: legal obligation, moral obligation, the practical realities of cross-border crime, but also for reasons of advancing unilateral foreign policy, and in ways that may not be consistent with human rights.
The nationality principle
Under international law, it is generally accepted that a country can regulate the conduct of its citizens overseas. For example, the High Court of Australia has upheld prosecution of Australian citizens in Australia for sexual (and other types) of crimes committed overseas. This is the “active nationality” principle.
A country can also punish those who perpetrate crimes against their citizens, which is known as the “passive nationality” principle. An example of this would be prosecution in country A of a person who commits a terror attack in country B, but in which citizens of country A are killed. The passive nationality principle is widely accepted across East Asia, including in China. It is also increasingly accepted globally in relation to crimes such as terrorism.
A country’s law can also apply outside its borders on the basis of the universality principle of jurisdiction, which is reserved for serious crimes, such as war crimes (including those alleged to have occurred in Israel, Palestine, and Ukraine), genocide, and piracy, and in some cases on other “protective/national security” grounds, such as for passport fraud.
Exercises of extraterritorial jurisdiction can sometimes lead to tensions between states with competitive claims to jurisdiction, as well as legal over-reach, as has happened in Australia before, for example, when a prosecution by the Australian government was deemed by the High Court of Australia to be an abuse of process. The problem in China is that courts do not have the constitutional authority to adjudicate on the scope and validity of parliamentary or executive power.
Hong Kong’s National Security Law
Hong Kong is considered by China to be an administrative region of the People’s Republic of China, and Hong Kong's “National Security Law” (NSL) expressly references China’s constitution. In turn, the constitution protects the “legitimate rights and interests of Chinese nationals overseas”. Separately from the NSL, Article 8 of China’s criminal code also states that its provisions “may be applicable to foreigners, who outside PRC territory, commit crimes against the PRC state or against its citizens”. This could be used to exercise both active and passive nationality jurisdiction. However, that provision only applies if the offences require a minimum sentence of three years imprisonment, and only if the conduct is also a crime in the place where it was committed (this is known as double criminality). Notably, this “double criminality” requirement appears not to apply to the NSL.
Chinese courts and extraterritoriality
The NSL includes an obligation to consider human rights and rule of law. However, Chinese courts do not have the ability to act as a check on the powers of the state – they simply decide whether an offence has been committed in a particular case. This means Hong Kong courts are limited in restraining application of the NSL. The Chinese government alone has the power to decide on the extraterritorial reach of the law.
Given that decisions to prosecute extraterritorial conduct are as much political as legal, healthy and robust engagement on international crime cooperation frameworks will be essential.
There are historic examples of Chinese criminal law being applied to Chinese citizens living overseas. In one case, a Chinese national was arrested in China for a currency transfer scheme conducted in Singapore. Her spouse was not prosecuted because he was a Singaporean national and the conduct was not an offence in Singapore, and therefore did not meet the “double criminality” requirement. In Wu v PRC (Abduction Case) (2017), a Chinese national committed a crime in Canada while living there and Canada sought to exercise territorial jurisdiction once he fled. However, China’s courts accepted his prosecution in China. Similarly, in the “Nuokang Case”, a Burmese national was alleged to have killed 13 Chinese crew members on the Thai side of the Mekong River in October 2011. The accused was arrested in Laos and then extradited to China. He and three of his associates were convicted in China and sentenced to death.
By contrast, China did not assert passive nationality jurisdiction when 58 Chinese immigrants were found dead in the United Kingdom in 2000. The case was instead finalised in the United Kingdom and the Netherlands, and it is possible matters of international relations informed China’s restraint in that instance. The geopolitical context is arguably more fraught now than at the time of that case, however.
Ultimately, it is likely that the NSL will be used to regulate extraterritorial conduct outside China and Hong Kong, and that we may see developments in legal thinking on this issue. Given that decisions to prosecute extraterritorial conduct are as much political as legal, healthy and robust engagement on international crime cooperation frameworks will be essential, and the power of a mobile legal architecture should not be underestimated.
