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Hong Kong has become a new terra cognita for recidivist protests. The genesis of the unending protests is traceable to the opposition to the then proposed extradition law in early 2019, and which in itself, is also traceable to the murder of Poon Hiu-wing by her boyfriend, Chan Tong-Kai, in 2018. Hiu-wing and Tong-Kai were both residents of Hong Kong. They travelled together to Taiwan on holiday in love or under infatuated influence, but terminated their relationship tragically: Tong-Kai brutally murdered his girl friend.
The Government in Hong Kong wanted to have Tong-Kai extradited back home for prosecution, but did not have an extradition agreement with Taiwan. This was the background to the proposition, in 2019, of an extradition bill to amend the Fugitive Offenders Ordinance (Cap 503) and Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525). The amendment was meant to enable a case-by-case transfer of fugitives on the order of the Chief Executive, Carrie Lam, to countries with which Hong Kong does not have a formal extradition treaty.
Grosso modo, the grant of extradition requests in international diplomatic practice is dependent on several factors: the crime for which an extradition is being sought must be against the law in the country from which extradition assistance is sought. In other words, the offence must not only constitute a crime in both requesting and sending countries, but must also be extraditable and very serious. This is the ‘principle of double criminality.’ Additionally, extradition of any suspect is also a function of the ‘Speciality Principle’ according to which an extradited person cannot be tried for a crime other than the offence for which he or she was extradited. And more notably, extradition treaties not only generally have a bilateral character and do exclude military, political and religious offences, but also create the same obligations for the contracting parties.
The problem here is that the crime of Tong-Kai was committed on the territory of Taiwan and Hong Kong did not have any extradition treaty with Taiwan. Apparently, there was a compelling need for an agreement with Taiwan and other countries, including China. As a country is not under any obligation to grant a request for extradition in the absence of an extradition treaty, and as there is no rule of international law preventing a State from extraditing anyone in the absence of a treaty, Carrie Lam opted to have an enabling agreement in place.
Against this background, Carrie Lam came up with a bill, entitled ‘Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, 2019’ in February 2019. But, for various considerations, Hong Kongers have been reacting violently to the bill. They began protesting on March 15, 2019 and more than 9000 people have been arrested. Two people have lost their lives. Hong Kongers do not want to be subjected to the jurisdictional competencies of the People’s Republic of China.
They complained about the misconduct of the Hong Kong Police Force and mistreatment of protesters since June 12, 2014. The failure of the 2014 Umbrella Revolution and the implementation of an anti-mask law and the invocation of an Emergency Regulations Ordinance since October 3, 2019 were other reasons for the protests against the extradition bill. More significantly, the protesters were not at all happy with the implementation of the National Anthem Bill put in place since June 11, 2020.
Consequently, the protesters have demanded the withdrawal of the bill, the investigation of police brutality and misconduct, the release of all arrested protesters, and the retraction of the official characterisation of the protests as ‘riots.’ The protesters insisted on continuing with the protests until their demands were met. And true, the impact of the protests has compelled Carrie Lam to announce on September 4, 2019 her preparedness to suspend the bill with effect from October 23, 2019. The bill was suspended as promised, but the protests have not abated in light of the new National Security Law for Hong Kong, enforced since June 30, 2020.
The Law and its Internationalisation
The introduction of a National Security Law by the Government of Mainland China in Hong Kong has not only raised two critical principles of international law, but also prompted its internationalisation. The two principles are those of pacta sunt servanda (sanctity of agreements) and rebus sic stantibus (fundamental change of circumstance).
Sanctity of agreements presumes that when an agreement is voluntarily negotiated and freely contracted, decency and commitment require faithfulness to it, and therefore full implementation of the agreement as obligated. On fundamental change of circumstance, it simply presumes that an agreement cannot but remain in force for as long as the circumstances prompting the conclusion of the agreement remain the same. However, whenever there is a change in the circumstances after the entry into force of the agreement, any party to the agreement is lawfully free to disregard the agreement.
In this regard therefore, the Sino-British Joint Declaration, done in 1984, is internationally believed to have been vitiated by the Beijing authorities, thus prompting the arguments of pacta sunt servanda and China’s breach of the Anglo-Chinese Joint Declaration. In the same vein, for the alleged breaches by China, there has been a change of circumstance, prompting not simply the main other party, Great Britain, but also its allies, to take some diplomatic sanctions against China, since Hong Kong is now believed to have been forcefully integrated into Mainland China.
For instance, the measures taken by the Government of Australia are noteworthy. Australia officially suspended its extradition agreement with Hong Kong and China on the basis that the newly introduced National Security Law is a manifestation of a ‘fundamental change of circumstance.’ In the words of the Australian Prime Minister, Scott Morrison, ‘the other issue that we are addressing is one that, as a result of changes that have occurred in Hong Kong, there will be citizens of Hong Kong who may be looking to move elsewhere… Australia has always been a very welcoming country to such people from all around the world.’ As he further put it, Australia ‘will also put arrangements in place to ensure we focus on Hong Kong applicants to study and work in regional areas, to help address skills shortages in those areas, with express pathways to permanent residency, as already applies after three years.’
Prime Minister Morrison has it that about 10,000 Hong Kongers, citizens and residents alike, are currently in Australia and that those of them with short visas would have their visas extended for five years and thereafter have them fully integrated. He also pointed to the possibility of disinvestments in Hong Kong. As good or as bad as these measures are concerned, there is nothing to suggest that the main problem of whether Hong Kong can have a full degree of autonomy now or in the year 2047 is always left unattended to. Measures taken now can only, at best, prompt a lose-lose situation, as they only strengthen Chinese hostility against the West.
International stakeholders rely largely on the December 19, 1984 Sino-British Joint Declaration, done in Beijing by Premier Zhao Ziyang and Prime Minister Margaret Thatcher, in arguing that China has breached its obligations under the Joint Declaration which entered into force on 30 June 1985. The consideration in this case is that, in the Joint Declaration, the Chinese government made clear its basic policies on Hong Kong.
One of the basic policies was that the Hong Kong Special Administrative Region, as it is officially called, would not practise the socialist system in Mainland China for fifty years, meaning that not until 2047. It is therefore being considered that there is no good basis for the Beijing authorities to begin to intrude in the administration of Hong Kong now. Hong Kong still has 27 years of ‘One Country, Two Systems.’ Perhaps more interestingly, not only is China accused of human rights violations, it is also argued that there is hardly any fairness in the dispensation of justice for critics of Beijing in Hong Kong.
For instance, international observers have raised many implications of the new security law: it will undermine human rights and basic freedoms in Hong Kong, as well as violate the International Covenant on Civil and Political Rights; that the security law may serve as pretext to oppress the Hong Kongers; that the law has the potential to make it difficult for foreign businesses in Hong Kong to respect human rights under the Guiding Principles on Business and Human Rights of the United Nations; that the Hong Kong police have always gotten away with excessive use of force, particularly, their use of chemicals against protesters; and more importantly, that the new legislation violates China’s obligations under the Joint Declaration.
The Chinese have argued to the contrary: that there is no breach of the Joint Declaration at all. In fact, China has posited that the life of the Joint Declaration came to an end with the eventual handover of Hong Kong on July 1,1997 to Mainland China. Following the handover, Hong Kong is governed by the Chinese Constitution and the Basic Law of the Hong Kong SAR. Consequently, the Joint Declaration is no more relevant. More notably, the Chinese government has it that the basic policies regarding Hong Kong as stated in the Joint Declaration are simply a declaration of policies that have been incorporated into the Basic Law of Hong Kong which was enacted by the National People’s Congress, on the basis of 2,878 votes in favour of the draft security law, one against, and six abstention.
And interestingly too, China has argued that, contrary to allegations of non-public support for the new law, there was general public support for it and that the new law, when compared with what obtains in the United States and Europe, is quite mild. Nowhere is the issue of human rights allowed to override national security. In fact, China indirectly indicts the United States of defining more than ten types of crimes that impinge on its national security while those of China are limited to only four. On this basis, it is difficult to admit that China has flouted the Joint Declaration.
First, China’s decision ‘to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997’ is made clear in Section 1 of the Joint Declaration. Second, Section 3(1) of the Joint Declaration accepts Chinese intention of ‘upholding (its) national unity and territorial integrity,’ while Section 3(2) stipulates that Hong Kong ‘will be directly under the authority of the Central People’s Government of the People’s Republic of China and that the Hong Kong Special Administrative Region would enjoy a high degree of autonomy (emphasis mine), except in foreign and defence affairs, which are the responsibilities of the Central People’s Government.’ The British simply agreed in Section 2 as follows: ”the Government of the United Kingdom declares that it will restore Hong Kong to the People’s Republic of China with effect from 1 July 1997.
Three issues are noteworthy in the stipulations of Sections 2 and 3: national unity, territorial integrity, and high degree of autonomy. The ordinary interpretation of Article 3 is that China will be reunited as one country, politically and one people, culturally (notion of national unity). It should be recalled that Hong Kong used to be an integral part of Mainland China until 1842. On January 25, 1841, the British occupied the island of Hong Kong and used it as a military stage point. The defeat of China compelled the cession of the island to Britain for 99 years in an agreement (Treaty of Nanking) on August 29,1842. Thus, Hong Kong became a crown colony of the British Empire.
Consequently, the return of Hong Kong, as provided in the 1984 Joint Declaration and the effective hand over on June 30-July 1, 1997 at 12 midnight was in fulfilment of the obligations created for the British in the 1842 Nanking Treaty. This is the logical basis for the political unity provided for in the Joint Declaration.
Another point in Article 3 of the Joint Declaration is territorial integrity. One question here is to ask why the British accepted the idea of territorial integrity if they intended to actually dismember Hong Kong from Mainland China. If Hong Kong was never part of China, why accept the reunification by accepting China’s ‘national unity’ and ‘territorial integrity’ agenda?
Main Problem: High or Full Degree of Autonomy?
More important is the provision and acknowledgment of ‘high degree autonomyin the Joint Declaration.’ First, why was there provision for ‘high degree’ and not for ‘full degree’ of autonomy in the Joint Declaration? Second, what should we mean by high degree of autonomy? On the basis of the Joint Declaration, ‘high degree autonomy’ simply refers to the vesting of power with the executive and legislative arms of government, and with an independent judiciary, having the competencies of final adjudication. It is about the retention of Hong Kong as a free port with separate customs territory. High degree autonomy allows for the retention of Hong Kong’s status of an international financial centre, especially its independent finances.
And most importantly, a high degree of autonomy also refers to the maintenance of the current social, economic systems and life styles in Hong Kong, in which case Hong Kong ‘may establish mutually beneficial economic relations with the United Kingdom and other countries, whose economic interests in Hong Kong will be given due regard. What is particularly noteworthy about China’s declared policies is that paragraph 12 of Section 3 of the Joint Declaration has it that the basic policies as declared and annexed into the Joint Declaration would be stipulated in a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, by the National People’s Congress of the People’s Republic of China, and they will remain unchanged for 50years.’ This paragraph is self-explanatory. Hong Kong does not and cannot have the status of a terra nullius. It is recognised as an integral part of Mainland China.
It is useful to also espy Article 23 of the Basic Law of Hong Kong, on the basis of which it may be difficult to consider the introduction of a new National Security Law as a violation of the Joint Declaration. As provided in Article 23, Hong Kong ‘shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of State Secrets, to prohibit foreign political organisations or bodies from conducting political activities in the region, and to prohibit political organisations or bodies of the region from establishing ties with foreign political organisations or bodies.’
The understanding of Article 23 cannot but enable the rationales behind the making of the new National Security Law which is generally considered as the major dynamic of the fundamental change of circumstance. The new law provides for four types of crimes that do not exist in existing statutes, hence the newness of a fundamental change. The crimes are those of secession, subversion, terrorism, and collusion with foreign forces. These crimes were already considered in the Joint Declaration. Indeed, the law provides for a maximum punishment of life imprisonment for offenders. Suspects found guilty may also be permanently prevented from holding public office. People can be charged for offences of terrorism.
Generally speaking, while the Chinese and Carrie Lam are defending the new law, the American school of thought is pointing to the ambiguities in the law, which believably, have the potential to limit democratic freedoms and taint the existing status of Hong Kong. From the perspective of Carrie Lam, the law is ‘actually relatively mild as far as national security laws are concerned.’ It will also enable Hong Kongers ‘to exercise their rights and freedoms without being intimidated and attacked.’ The Head of the existing Hong Kong’s Beijing Liaison Office, said the new National Security Office would be ‘the envoy for Hong Kong’s safety and is also the gatekeeper of national security.’
The concerns of the Americans also deal more with the identified loopholes in the law. Attention is drawn to the fact that the security law prohibits ‘hatred’ of China’s central government and that the ambiguities in the law allow for possible oppression. For instance, the NPC Observer, a group of legal experts from Hong Kong and the United States, has it that ‘its criminal provisions are worded in such a broad manner as to encompass a swath of what has so far been considered protected speech. Article 29 is an example of the broad wording which stipulates that anyone who conspires with foreigners to provoke ‘hatred’ of the Chinese government or the authorities in Hong Kong could have committed a criminal offence.’ The legal experts ask if this provision includes criticism of China’s governing Communist Party.
Article 55 is also considered vague as it gives the Chinese mainland security outfits the right to investigate some national security cases that are considered ‘complex,’ ‘serious,’ or ‘difficult.’ These words are ‘subjective’ in the eyes of the legal experts, who also complained about trials that can be held in secret (Article 41), without jury (Article 46), and judges that can be handpicked (Article 44) by Hong Kong.
In light of the foregoing, it should be noted that, for a very long time to come, peace is most likely to be far-fetched in Hong Kong which is the short name for the whole area covering Hong Kong Island, Kowloon and the New Territories. The problem in Hong Kong is the conflict of interest between Mainland China which wants high or limited degree of autonomy for Hong Kong and the Hong Kongers who want full autonomy or autonomous sovereignty in favour of which the West is campaigning. Australia, for example, has suspended its extradition treaty with Hong Kong and has advised its citizens not to travel to Hong Kong because of the new National Security Law. This measure is only begging the issue. With the law in force, the future of Hong Kong is left to be determined more by Beijing and less by international reactions, and further less by the protesters. The main question is: can the protesters or anyone impose a full degree autonomy before 2047 when the ‘One Country and Two Systems is expected to come to an end and give way to a new principle of ‘One Country, One System’? Most unlikely! The international community will need to make a choice between the pursuit of high degree and full degree autonomy in Hong Kong in the maintenance of international peace and security.