Evan Nichols, Associate Editor, Michigan Journal of International Law
On the night of June 30th, 1997, the last British governor of Hong Kong ordered the permanent lowering of the Union Jack over the city’s center of power.[i] With that seemingly small gesture, the UK transferred sovereignty over what was then the world’s 25th largest economy back to the People’s Republic of China (“PRC”).[ii] It was a process long in the making, and one that promised to have a far-reaching impact on the world geopolitical order. With this year’s mass outbreak of pro-democracy protests in Hong Kong, we are beginning to see one facet of this impact take shape.
While the normative implications of expanding democratic institutions in Hong Kong have justifiably been the subject of much debate, the present legal relationship between Hong Kong and the mainland is a creature of international contract. So this blog post asks, is China living up to its end of the bargain struck with the United Kingdom under which Hong Kong was freed from colonial rule? A preliminary analysis of the international agreement that governed this momentous transaction, in relation to Hong Kong’s subsequent experience under the aegis of Beijing, suggests that China, despite public protests, has thus far honored its legal obligations.
The Sino-British Joint Declaration (the “Declaration”), signed in 1984, established the terms of Hong Kong’s transfer under the central theme of “One Country, Two Systems.”[iii] Importantly under the Declaration, the PRC declared that it would welcome Hong Kong into the fold as a Special Administrative Region (“SAR”) under Article 31 of the Chinese Constitution.[iv] As a SAR, Hong Kong was promised much greater autonomy than that afforded to its provincial sisters.[v] To protect this autonomy, and thus the continued existence of the two systems within China, the PRC pledged to vest legislative, executive, and judicial power in the government of Hong Kong, except in the spheres of foreign and defense affairs.[vi] In addition to a general pledge to preserve the legal structure from the colonial era, China specifically guaranteed that “[r]ights and freedoms, including those of the person, of speech, of the press, of assembly…, and of religious belief” would be protected under Hong Kong SAR law.[vii] China further promised not to impose taxes on Hong Kong. These terms were given effect for fifty years after Hong Kong’s reunification with China.[viii]
The Declaration also addressed the mode of selecting Hong Kong’s Chief Executive, the issue that sparked this year’s dramatic Democracy protests.[ix] Under the Declaration, the Chinese Central Government in Beijing would have the power to appoint the Hong Kong Chief Executive.[x] While the Chief Executive and other government officials would be local residents of Hong Kong, no other pro-democracy electoral mechanisms were contemplated.[xi]
Despite the omission of democratic guarantees in the Declaration, Beijing surprised many observers when it gave its blessing to a pro-democratic provision included in the Basic Law, Hong Kong’s Constitutional document implemented in the wake of reunification with China. That provision declared that it was the Hong Kong SAR’s “ultimate aim [to select] the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”[xii] This statement gave hope to democracy supporters in Hong Kong, particularly because it seemed to be evidence of China’s willingness to go beyond its obligations under the Declaration to support Hong Kong’s democratic development.[xiii] While China has not blatantly acted in contravention to the rights guarantees in the Declaration and the Basic Law, it has certainly been accused of pushing their outer limits.[xiv]
It was within this historical context that the Central Government, through the National People’s Congress (“NPC”) Standing Committee, ruled that candidates for Hong Kong Chief Executive would be selected by nominating committee formed by Hong Kong’s election committee, a body generally viewed as pro-Beijing.[xv] The thousands of protestors who have filled the streets in recent months have made clear that they are willing to fight for a more robustly democratic electoral process. However, it is clear that nothing in the Declaration forecloses the NPC’s decision. In fact, as has been previously noted, the conditions placed on Hong Kong’s return to China require no democratic involvement at all in the selection of the Chief Executive.
The fact that China has honored its obligations under the Declaration will surely not settle the ongoing debate in Hong Kong. The citizens of Hong Kong, who were almost entirely left out of the process of negotiating the Declaration, will continue to exercise their freedom of speech, press, and assembly to advocate for their right of self-government. This debate may well push the limits of the One Country, Two Systems framework. However, what is clear is that those advocating democracy unfortunately have nothing in the contract establishing Hong Kong’s relationship to the mainland to support their cause. Indeed, what little democracy China has put on the table for Hong Kong may well be seen as extraordinary progress for a polity that experienced hundreds of years of colonial rule and now ultimately answers to what is in general a highly oppressive central regime.
[i] Jonathan D. Spence, The Search for Modern China 675 (2d ed. 1999).
[ii] Economy Watch, http://www.economywatch.com/economic-statistics/year/1997/ (last visited Nov. 2, 2014).
[iii] Spencer, supra note 1.
[iv] Sino-British Joint Declaration on the Question of Hong Kong, U.K.-China, art. III, Dec. 19, 1984, available at http://www.cmab.gov.hk/en/issues/jd2.htm.
[v] Spence, supra note 1.
[vi] Sino-British Joint Declaration on the Question of Hong Kong, supra note 4.
[viii] The Declaration remains in effect until 2047.
[ix] Why is Hong Kong Protesting?, BBC News China (Oct. 18, 2014, 3:06 PM), http://www.bbc.com/news/world-asia-china-29054196.
[x] Sino-British Joint Declaration on the Question of Hong Kong, supra note 4.
[xi] Spence, supra note 1.
[xii] Xianggang Jiben Fa art. 45 (H.K.), available at http://www.basiclaw.gov.hk/en/basiclawtext/chapter_4.html#section_1.
[xiii] Spence, supra note 1.
[xiv] See, e.g., HK Shelves Security Bill, BBC News (Sept. 5, 2003) (China proposed then withdrew support for an anti sedition measure that was viewed as restricting civil rights), http://news.bbc.co.uk/2/hi/3082716.stm.
[xv] NPC decides on nominating committee for HKSAR chief executive selection, Xinhua News, (Aug. 31, 2014, 3:37:08 PM), http://news.xinhuanet.com/english/china/2014-08/31/c_133609213_2.htm.