Examination of Human Rights Extraterritoriality and Application of Human Rights Obligation Within the Case of Hong Kong's Security Law

ANIS MUHAMMAD AFLA, Fajri Matahati Muhammadin, S.H., LL.M., Ph.D

2021 | Skripsi | S1 HUKUM

This research seeks to understand and analyze how the concept of human rights extraterritoriality apply in the case of the Hong Kong Security Law’s article 38 which extends China’s jurisdiction to foreign nationals abroad; and how human rights obligations specifically the freedom of expression apply to China, which signed but did not ratify the ICCPR. This research used the normative legal method. It primarily relies on library research and literary research. By analyzing the situation of China’s signing but not ratifying of the ICCPR using article 18 of the VCLT, it was discovered that article 18 of the VCLT is unsuitable to be applied towards “law making treaties” and is more appropriate to be applied towards “contract making treaties”. By further analyzing the customary nature of human rights obligations, it was ultimately concluded that while the majority of the contents of UDHR and ICCPR are arguably customary in nature, the customary nature of the obligation of freedom of expression is still uncertain. With respect to the extraterritorial application of human rights, it was discovered that the third model of human rights extraterritoriality, namely the “territorial model with distinction between positive and negative obligations” was the most optimal in the case of article 38 of the Security Law. The overall conclusion is that while China is responsible for the human rights application of foreign citizens abroad subjected to its security law, its obligation to ensure the human rights is not certain.

This research seeks to understand and analyze how the concept of human rights extraterritoriality apply in the case of the Hong Kong Security Law’s article 38 which extends China’s jurisdiction to foreign nationals abroad; and how human rights obligations specifically the freedom of expression apply to China, which signed but did not ratify the ICCPR. This research used the normative legal method. It primarily relies on library research and literary research. By analyzing the situation of China’s signing but not ratifying of the ICCPR using article 18 of the VCLT, it was discovered that article 18 of the VCLT is unsuitable to be applied towards “law making treaties” and is more appropriate to be applied towards “contract making treaties”. By further analyzing the customary nature of human rights obligations, it was ultimately concluded that while the majority of the contents of UDHR and ICCPR are arguably customary in nature, the customary nature of the obligation of freedom of expression is still uncertain. With respect to the extraterritorial application of human rights, it was discovered that the third model of human rights extraterritoriality, namely the “territorial model with distinction between positive and negative obligations” was the most optimal in the case of article 38 of the Security Law. The overall conclusion is that while China is responsible for the human rights application of foreign citizens abroad subjected to its security law, its obligation to ensure the human rights is not certain.

Kata Kunci : Hong Kong Security Law, extraterritorial application of human rights, customary nature of human rights, Article 18 VCLT. 1