China should honor its treaty obligations to Hong Kong

Han Zhu

Vol. 39 Executive Editor

On June 30, 2017, the spokesman of the Chinese Foreign Ministry, in a retort to foreign statements regarding the political conditions of Hong Kong, said the Sino-British Joint Declaration, which laid the groundwork for Hong Kong’s handover, is a “historical document that no longer has any realistic meaning.”[i] Not only did this statement immediately raise concerns about China’s 50-year promise of the so-called “one country, two systems” framework implemented in Hong Kong, it also cast doubt on China’s future commitment to international law at large. In 1842, Hong Kong was officially ceded to the then British Empire in accordance with the terms in the Treaty of Nanjing following a humiliating defeat of the Qing Dynasty, then ruler of imperial China, in the First Opium War.[ii] The territory of British Hong Kong further expanded to include the Kowloon Peninsula in 1860, and the “New Territories” in 1898.[iii] In 1984, after rounds of negotiation between Beijing and London, the Sino-British Joint Declaration (“the Declaration”) was signed and went into force in 1985.[iv] The Declaration was registered by both the People’s Republic of China and United Kingdom governments at the United Nations on June 12, 1985.[v] Therefore, the Declaration is a treaty in nature that has binding force on both countries.[vi] In 1997, Hong Kong was officially handed over to China, in accordance with the term in the Declaration.[vii] The Declaration promises the “one country, two systems” principle, under which “[t]he current social and economic systems in Hong Kong will remain unchanged.”[viii] Such a promise is further specified as a 50-year promise, which is enshrined in the Basic Law, a constitution-like law in Hong Kong.[ix] The post-handover democratic development in Hong Kong has been a tumultuous one, culminating in the Occupy Central movement in 2014, a civil disobedience action pushing for the fulfillment of the promise of universal suffrage in the Basic Law.[x] This was a direct reaction against the recently-approved plan for electing the Chief Executive of Hong Kong and, once again, the plan fell short of implementing universal suffrage.[xi] Qiao Xiaoyang, then chairman of the Law Committee under the National People’s Congress Standing Committee (NPCSC), further startled the Hong Kong people by announcing that the candidates for Chief Executive must be persons who love the country and love Hong Kong, which was considered a political, rather than legal concept.[xii] Subsequent to the Occupy Central, pro-democracy activists frequently made headlines for causing further controversies.[xiii] In 2017, British Foreign Secretary Boris Johnson called on all Hong Kong parties to “progress towards a more democratic and accountable system of government,” which invoked the retort from China in the statement cited at the beginning of this article.[xiv] The Vienna Convention on the Law of Treaties (VCLT) provides that “every treaty in force is binding upon the parties.”[xv] China is a party to the VCLT.[xvi] The Declaration not only provides the specifics regarding the handover, but also consists of a list of commitments China made to uphold the financial, economic, and political institutions and the freedoms and rights of the Hong Kong people, encapsulated in the general idea that Hong Kong will enjoy “a high degree of autonomy.”[xvii] Granted, many of the specific provisions concerning the latter have been included in the Basic Law, and their implementation was guarded to a large extent via the judicial review conducted by the Court of Final Appeal in Hong Kong.[xviii] However, to call the Declaration an “historical document” conveys the idea that it no longer binds China, both casting doubt on the democratic development of Hong Kong in the future and on China’s commitment to prevailing international norms. The idea that the treaty no longer binds China is a strange and dangerous one. Regardless of China’s understanding of the Declaration, its failure to observe the duties under the treaty will probably be characterized as a material breach, in the event of which the VCLT allows the other party in the same bilateral treaty to suspend its own obligations under the treaty as well.[xix] Then would this mean the UK has no obligation to transfer the sovereignty of Hong Kong back to China, thereby still retaining the sovereignty of Hong Kong?[xx] Such a claim is unlikely to be enforced against China, but the UK still holds this legal claim under the VCLT. In fact, China has a huge interest in upholding the Declaration. Essentially, the Declaration materialized the idea of “one country, two systems,” which remains the most promising framework for the unification of Taiwan and China, one of the top political goals for generations of Chinese administrations. The fading prospect for democracy in Hong Kong has significantly discredited the success of “one country, two systems.” A disavowing of the Declaration will be a death blow to any credibility Beijing has left on respecting the current political and economic institutions in Taiwan for a prolonged period of time, if peaceful unification remains a possible option. To deny the “realistic meaning” of the Declaration will also cause profound reputational loss, increasing the transactional cost China must bear when signing future treaties with other countries. The spokesman’s statement represented the official attitude of the Chinese government. The UK is still a powerful state in the world today, and a surprisingly rough response from China that indicates China might shirk its responsibilities under a treaty could raise reservations on the part of countries currently under treaty obligations with China, and in countries that will negotiate terms with China in the future. For example, in the Three Communiqués between China and the United States, the United States declared it would adopt the “One China” policy on the issue of Taiwan.[xxi] Surely, the communiqués are more properly categorized as soft law rather than treaties. However, US administrations have abided by and made efforts to comply with the “One China” policy consistently, such as issuing pronouncements at times.[xxii] It would be a disservice to Beijing if the Three Communiqués became “historical documents” without any “realistic meaning.” Further, the advantage of treaties is precisely the mutual assurance of voluntary compliance, thereby saving the cost of monitoring by raising the political cost of noncompliance. China is becoming an increasingly active member in the international arena, signing treaties with other states to pursue its geopolitical and economic interests. Unless China signals its intention to uphold prevailing international law norms and makes a sincere effort to comply with existing treaty obligations, other countries might worry about China’s ability to honor its obligations, thus bargaining for terms that are less favorable for China. Insofar as international law constitutes a significant part of the international order, the spokesman’s retort also questions the sincerity behind China’s pronouncement that it has no intention of challenging the international order.[xxiii] We can debate whether Boris Johnson’s statement was politically provocative; we can also analyze the historical roots behind the deeply suspicious attitude the Chinese people have against Western nations; we can even debate whether the retort is a smart Realpolitik move. However, China would be ill advised to hastily toss off a statement that indicated it has disregarded a treaty. As a rising global power, China’s actions can potentially set norms in international law that eventually bite back, damaging China’s interests.

[i] Venus Wu, China says Sino-British Joint Declaration on Hong Kong no longer has meaning, Reuters (June 30, 2017), https://www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1. [ii] Treaty of Nanjing (Nanking), China-U.K., June 26, 1843, http://www.international.ucla.edu/asia/article/18421. [iii] Kenneth Pletcher, Opium Wars, Encyclopedia Britannica, https://www.britannica.com/topic/Opium-Wars#ref227497 (last visited Nov. 18, 2017); New Territories, Encyclopedia Britannica, https://www.britannica.com/place/New-Territories (last visited Nov. 18, 2017). [iv] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, China-U.K., Dec. 19, 1984, 1399 U.N.T.S. 23391 [hereinafter the Declaration]. [v] Id. [vi] Id. at art. 8. [vii] Id. at art. 1; see Wu, supra note 1. [viii] The Declaration, supra note 5, at art. 3(5). [ix] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, art. 5, http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf  (last visited Nov. 18, 2017). [x] Hong Kong protests: Timeline of the occupation, BBC News (Dec. 11, 2014), http://www.bbc.com/news/world-asia-china-30390820. [xi] Id. [xii] Te-Ping Chen, Hong Kong’s Future Leader Must ‘Love China,’ Wall St. J. (Mar. 26, 2013), https://blogs.wsj.com/chinarealtime/2013/03/26/hong-kongs-future-leader-must-love-china. [xiii] See, e.g., Eddie Lee et al., Courting controversy in Hong Kong over the Legislative Council oath-taking fiasco, South China Morning Post (Nov. 4, 2016), http://www.scmp.com/news/hong-kong/politics/article/2042822/courting-controversy-hong-kong-over-legislative-council-oath  (detailing the event where newly-elected members of Legislative Council advocated the independence of Hong Kong from China and used derogatory terms to refer to China during the oath-taking). [xiv] Greg Wilford, China attacks Boris Johnson for ‘incorrect remarks’ about Hong Kong, Indep. (July 1, 2017), http://www.independent.co.uk/news/world/asia/hong-kong-boris-johnson-china-criticised-democracy-communist-party-sino-british-declaration-20th-a7817931.html. [xv] Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S 18232 (entered into force Jan. 27, 1980) [hereinafter VCLT]. [xvi]  The treaty was signed on behalf of the Republic of China on April 27, 1970, but later the People’s Republic of China declared the signature was by Taiwan and therefore null and void. The People’s Republic of China became a party of the treaty via accession on September 3, 1997. Vienna Convention on the Law of Treaties, U.N. Treaty Collection, https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en#4 (last visited Nov. 18, 2017). [xvii] The Declaration, supra note 4, at art. 3(2). [xviii] See Ng Ka Ling v. Director of Immigration, [1998] 2 H.K.C.F.A.R 4 (ruling that the courts of Hong Kong have the judicial power to decide if a law is consistent with the Basic Law that protects certain fundamental rights and freedoms in Hong Kong). [xix] VCLT, supra note 15, at art. 60(1). [xx] The Declaration, supra note 4, at art. 1. [xxi] Josh Rogin, Full Text of the U.S.-China Joint Statement, Foreign Pol’y (Jan. 19, 2011), http://foreignpolicy.com/2011/01/19/full-text-of-the-u-s-china-joint-statement. [xxii] See Xi Jinping Meets with US President Obama, Embassy of the People’s Republic of China in the U.S. (Feb. 15, 2012), http://www.china-embassy.org/eng/zmgx/t905502.htm; Trump agrees to honour ‘One China’ policy despite threats, BBC News (Feb. 10, 2017), http://www.bbc.com/news/world-asia-china-38927891. [xxiii] Shi Jiangtao, China has no intention of challenging international order, say former diplomats, South China Morning Post (July 9, 2016), http://www.scmp.com/news/china/diplomacy-defence/article/1987376/china-has-no-intention-challenging-international-order.