China, UK, and Their Sino-British Joint Declaration

Kay Li

Vol. 41 Associate Editor

This is the sixth month of the ongoing series of protests in Hong Kong, and with each passing day they get more and more violent, now involving baton beatings, water cannons, tear gas, petrol bomb attacks, and even gunfire (1)(2). The protests started in June, when the first protest was triggered by the Hong Kong government’s proposal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which would have allowed for criminal suspects in Hong Kong to be extradited to mainland China under certain circumstances (3). Protesters worried that the Bill would give mainland China greater influence over Hong Kong. (4) The Bill was withdrawn in September, but the protests continued, and developed into a cry for full democracy in Hong Kong. (5) Many countries have heard Hong Kong’s cry, but one country has taken a particular interest in the event because of its history with China regarding Hong Kong – the United Kingdom. July 1 of this year marks the 22nd anniversary of the handover of the former British colony Hong Kong from Britain to China, an agreement stipulated in the Sino-British Joint Declaration in 1984 (6). Speaking ahead of the anniversary, British Foreign Secretary Jeremy Hunt said: “Recent protests in Hong Kong make it even more important on the anniversary of the handover to reiterate that the UK Government’s commitment to the Sino-British Joint Declaration is unwavering. It is a legally binding treaty and remains as valid today as it did when it was signed and ratified over 30 years ago…We strongly believe that upholding ‘One Country, Two Systems’ is the best way to ensure Hong Kong continues to play a vital role for China. (7)” The “One Country, Two Systems” he spoke of is a policy proposed by Chinese leader Deng Xiaoping since his emergence as China’s paramount leader in 1978. This policy was proposed specifically for taking back former Western colonies such as Hong Kong, since China recognized that imposing China’s socialist systems on a former Western colony “would create panic and cause economic mayhem. (8)” “One Country, Two Systems” thus realizes some of the core terms of the Sino-British Joint Declaration – acknowledging Hong Kong as part of China, allowing it to “enjoy a high degree of autonomy” including “executive, legislative and independent judicial power”, local “elections or consultations”, and “independent finances”, while its laws and “social and economic systems” remain unchanged (9). However, since Hong Kong’s handover, it becomes more and more apparent that Britain and China have drastically different interpretations of the Joint Declaration’s spirit and significance. China has been increasingly emphasizing the “One Country” part of the core policy, while Britain (and the rest of the Western world along with Hong Kong) repeatedly accuse China for trying to break the wall between the “Two Systems”. China views the Joint Declaration as a historical document with no significance now since its only purpose is to aid the handover, while Britain views it as an ongoing treaty that needs to be enforced. (10) The clash of the interpretations has sparked protests in Hong Kong before. In 2014, to keep its promise of universal suffrage with Hong Kong, the Standing Committee of the National People’s Congress passed a reform framework that implements universal suffrage, on condition that only two or three committee-vetted candidates who love the country (China) would be allowed to run (11). Considering the reform an erosion of the barrier between the “Two Systems”, furious Hong Kong people engaged in a massive protest known as the “umbrella revolution” (12). Following the affair, the British Parliament’s Foreign Affairs Committee started an inquiry into Britain’s relations with Hong Kong, including inquiry into how Britain monitors the implementation of the Joint Declaration. To its surprise, China told the Committee its members would be denied visas for Hong Kong. (13) In an emergency debate in the British House of Commons following the visa ban, Committee chairman Sir Richard Ottaway said: “At the heart of the Chinese argument…is that the joint declaration signed by China and the United Kingdom is now void and only covered the period from the signing in 1984 until the handover in 1997…[T]his is a manifestly irresponsible and incorrect position to take. It is a live agreement…The second point made is…that we are not a colonial power anymore and must not behave like one. (14)” Despite Ottaway’s anger, mainland China reiterated its position that Hong Kong is now part of China and Britain has no authority to oversee the implementation of the Joint Declaration anymore (15). When asked whether Britain had any responsibility for Hong Kong as a signatory to the Joint Declaration, Chinese Foreign Ministry spokeswoman Hua Chunying said: “Britain has no sovereignty over Hong Kong that has returned to China, no authority and no right to oversight…The real aim of a small minority of British people trying to use so-called moral responsibility to obscure the facts is to interfere in China’s internal affairs. (16)” The same theme was repeated at the Joint Declaration’s 20th anniversary. In 2017, former British Foreign Secretary Boris Johnson submitted a statement to Parliament saying: “Hong Kong’s success is built on its high degree of autonomy, as enshrined in the Sino-British Joint Declaration…The UK, therefore, welcomes statements by the Chinese government…expressing commitment to the faithful implementation of ‘One Country, Two Systems’. (17)” Mainland China’s response? “Now Hong Kong has returned to the motherland’s embrace for 20 years, the Sino-British Joint Declaration, as a historical document, no longer has any practical significance, and it is not at all binding for the central government’s management over Hong Kong. The UK has no sovereignty, no power to rule and no power to supervise Hong Kong after the handover,” said Chinese Foreign Ministry spokesman Lu Kang (18). It is unclear what this gap in interpretation will mean for the two Joint Declaration signatories and to Hong Kong. The signatories have taken firm positions, one treating the treaty as a valid one that needs to be properly implemented until it expires, the other treating the treaty as void and denying the other signatory’s right and obligation to oversee. The International Court of Justice (ICJ) might be an avenue for settling the dispute, but mainland China’s interest in retaining control over Hong Kong is so great, that one might doubt its willingness to hear a third opinion. Besides, what does it mean even if the ICJ rules that the Joint Declaration is valid, and China has materially breached it? Article 60 of the Vienna Convention on the Law of Treaties gives the victim of a breached bilateral treaty the option to release itself from all of its obligations under the breached treaty (19). However, in the case of the Joint Declaration, Britain releasing itself from its obligations is exactly what China wants. The situation will become even more bizarre when the Joint Declaration expires in 2047. There will be no valid treaty to implement anymore. Does it mean the wall between the “Two Systems” collapse, and Hong Kong loses all autonomy and merges into “One Country” with mainland China? The fate of Hong Kong’s fight for democracy remains unknown.

(1) Hong Kong Protest March Descends into Violence, BBC News, Oct. 6, 2019, https://www.bbc.com/news/world-asia-china-49949548. (2) Saira Asher & Grace Tsoi, What Led to a Single Gunshot Being Fired?, BBC News, Aug. 30, 2019, https://www.bbc.co.uk/news/extra/1diisEsIvY/hong-kong-protests. (3) The Hong Kong Protests Explained in 100 and 500 Words, BBC News, Oct. 14, 2019, https://www.bbc.com/news/world-asia-china-49317695. (4) Protesters worried that the Bill would allow mainland China, the judicial system of which lacks independence from the Communist Party, to legally arrest virtually anyone from Hong Kong, including political activists. Mike Ives, What Is Hong Kong’s Extradition Bill?, N.Y. Times, June 10, 2019, https://www.nytimes.com/2019/06/10/world/asia/hong-kong-extradition-bill.html. (5) Supra note 3. (6) 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. (7) Press Release, Jeremy Hunt, Foreign Secretary, Anniversary of the Handover of Hong Kong: Foreign Secretary Statement (June 3, 2019), https://www.gov.uk/government/news/foreign-secretary-statement-on-the-anniversary-of-the-handover-of-hong-kong. (8) A.K., What Is China’s “One Country, Two Systems” Policy?, The Economist, June 30, 2019, https://www.economist.com/the-economist-explains/2019/06/30/what-is-chinas-one-country-two-systems-policy. (9) Supra note 6. (10) See supra note 7 and 8. (11) Jonathan Kaiman, Hong Kong’s Umbrella Revolution, The Guardian, Sept. 30, 2014, https://www.theguardian.com/world/2014/sep/30/-sp-hong-kong-umbrella-revolution-pro-democracy-protests. (12) See id. (13) Frank Ching, Is Beijing Breaching the Joint Declaration?, Japan Times, Dec. 9, 2014, https://www.japantimes.co.jp/opinion/2014/12/09/commentary/world-commentary/is-beijing-breaching-the-joint-declaration/#.XbfDZXdFxPY. (14) 2 Dec. 2014, Parl Deb HC (2014) col. 135. (15) Danny Lee & Gary Cheung, Beijing Tells Britain It Has No ‘Moral Responsibility’ for Hong Kong, S. China Morning Post, Dec. 4, 2014, https://www.scmp.com/news/hong-kong/article/1654603/china-says-british-complaints-over-hong-kong-visit-ban-useless. (16) Id. (17) Written Statement to Parliament, Boris Johnson, Foreign Secretary, Hong Kong Special Administrative Region 20th Anniversary: Written Ministerial Statement (June 29, 2017), https://www.gov.uk/government/speeches/hong-kong-special-administrative-region-20th-anniversary-written-ministerial-statement. (18) 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. (19) Vienna Convention on the Law of Treaties, art. 60, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). The views expressed in this post represent the views of the post’s author only.