Hong Kong and China: Is China already breaking the Sino-British Joint Declaration of 1984, and if so, what can be done about it?
Opinion Analysis by Camille Heneine, Staff Writer
September 2nd, 2020
Since the Sino-British joint agreement of 1985, Hong Kong has had a very special status compared to other Chinese regions. The British agreed to give back the colonized territories to China on the sole condition that the city keeps its autonomy, its freedom, and that the PRC will not impose its communist principles upon its citizens. Since then, both operated following the ideology “one country, two systems”. The metropolis has its own legislative body in order to protect its rights and this situation allowed Hong Kong residents to protest in 2019 for example against China’s extradition law.
Nevertheless, Chinese laws can be applied in Hong Kong under a section called Annex III in the city’s Basic Laws and can be introduced by decree, meaning bypassing the city’s parliament. The only requirement is that the national legislature of the PRC (the National People’s Congress) interact with Hong Kong’s government when writing such laws. However, this is somewhat meaningless as the latter’s officials are hand-picked from Beijing. These laws are supposed to mainly cover foreign affairs and national defense.
Xi Jinping, China’s current President, used this particular clause on the 30th March 2020 to tighten the vice on the protesters, with China referring to them as a “political virus”. Beijing issued a new security law that, according to the country’s Premier Li Keqiang, is designed to maintain “Hong Kong’s long-term prosperity and stability”. Its content was not specified for weeks until it went into effect on the 30th of June. It gives mainland China the right to establish national security agencies that would be able to publicly operate without following local laws. It aims, supposedly, to prevent “secession, subversion, organization, and perpetration of terrorist activities and collusion with a foreign country or with external elements to endanger national security”.
However, the new legislation is arguably nothing short of a façade; hiding behind the vague terms of “national security” mainland China is violating Hong Kong’s basic civil liberties and is especially trying to limit freedom of expression. Amongst other rights, it gives the country the authorization to appoint judges in courts, transfer trial cases from Hong Kong to mainland China and arrest protesters for “terrorism”. The law enables life sentences for those found guilty of certain crimes.
This situation is putting the Sino-British treaty under a lot of strain because, although not breaking the letter of the law, the legislation is clearly in violation of the spirit of the law. Boris Johnson went further and stated that it was a “clear and serious” breach of the agreement. During the UN Human Rights Council, the international community spoke up on the matter and 27 countries expressed their deep concern regarding Hong Kong’s future and urged China to reconsider its decision. Others, such as Cuba supported China’s decision. Be that as it may, one of the fundamental principles of international law is non-interference in other states’ internal affairs, thus preventing the United Nations’ intervention.
What can the West do to alter China’s calculations? Some countries, such as the United Kingdom, promised 2.9 million Hong Kongese, with a British national status overseas, the right to work and study in Great Britain for a period of 5 years and thus the ability to apply for citizenship. Others, such as Taiwan and Australia, already opened their doors to fleeing Hong Kong citizens. The United States has revoked Hong Kong’s special trade status.
Other extreme responses could involve the United States applying ‘sanctions’ and excluding some Chinese individuals or sectors from its financial system. This possibility is referred to as the “nuclear option” as it would create an international financial crisis that would hurt all protagonists.
In international law, countries can step in using military force where human rights are violated evidently with the approval of the Security Council, for example in 1991 it was done in Iraq for the sake of the Kurdish people. This is called collective intervention on humanitarian ground. The likelihood of this in the China/Hong Kong context is extremely unlikely given the lack of consensus at the Security Council, let alone the potential repercussions.
So far, nothing has made China budge and we should not hold our breath given the country’s aggressive stance on the international stage and implacable treatment of internal dissenters. Regardless of the fine print of the agreement, China is already demonstrating it’s arguably true intent, with several arrest warrants issued against democracy activists, both within and outside of Hong Kong, for breaching the new legislation. The most prominent of those was the 14th of August action against media mogul Jimmy Lai, who was arrested for endangering national security and “colluding” with foreign forces. His arrest was a “symbolic action”, an example to set the tone and warn others of the new normal in the territories.
It is clear that China’s goal is to reduce Hong Kong’s freedoms. Hiding behind its new law, the Chinese government is trying to control Hong Kong and completely undermine the “two systems” concept at the heart of the 1984 agreement.
Bibliography
https://www.bbc.com/news/world-asia-china-52765838
https://www.bbc.com/news/world-asia-china-52765838
https://www.nytimes.com/2020/05/28/world/asia/china-hong-kong-crackdown.html
https://www.un.org/ruleoflaw/files/3dda1f104.pdf
https://journals.sagepub.com/doi/full/10.1177/2158244019840911
https://www.cnbc.com/2020/07/01/chinas-national-security-law-hong-kong-global-financial-center.html
https://www.theguardian.com/world/2020/may/06/china-calls-hong-kong-protesters-a-political-virus
https://www.dw.com/en/hong-kong-security-law-what-does-china-really-intend/a-53735706