With the enactment of the Hong Kong National Security Law by China, commentators are raising several concerns about its prospective impact on the rights and liberties of residents and citizens of Hong Kong. The dramatic effects of this draconian new law are already evident through the spate of several irrational and arbitrary arrests of protestors, which is in keeping with China’s authoritarian approach to dissent. Technically, the obligations or duties of the Chinese authorities while governing Hong Kong are born out the Sino-British Joint Declaration, which requires China to safeguard democratic principles in Hong Kong. Several critics of Beijing view the new security legislation as a violation of the “one country, two systems” policy enshrined in the document. However, while some commentators have suggested that the new security law is a violation of international law, the nature of China’s commitments towards Hong Kong as per its agreement with the UK remains unclear. While it is clear that China should follow through with its duties under the document, the more pertinent question, perhaps, is whether China must.
The United Kingdom has time and again reiterated that the passage of the National Security Law amounts to a “clear violation of China’s international obligations, including those made specifically to the United Kingdom under the Joint Declaration.” However, China maintains that the issue is entirely restricted to internal affairs of its territory, and urged other countries to refrain from “meddling with Hong Kong’s affairs and interfering with China’s internal politics”. While the UK’s criticism of China’s human rights’ violations in Hong Kong may be valid, calling it a violation of “international law” or the Joint Declaration is, in fact, incorrect.
There are several obstacles to the smooth functioning of the Joint Declaration. To begin with, the two countries disagree over the exact nature of the document, and, therefore, the resulting legal obligations. The UK believes that the agreement between the two countries continues to be “legally binding”. On the other hand, China, despite recognising the validity of the document for years, now refers to it as a “historical document”. This is not a novel claim by China. In 2014, Ni Jian, China’s Deputy Ambassador in the UK, said that the document was “now void and covered only the period from the signing in 1984 until the handover in 1997”.
Consequently, it is essential to determine the nature of the document to establish whether the obligations are binding. The document is not titled as a treaty, but a “declaration”. However, the nomenclature is hardly relevant in determining the nature of the document. What is more important is the intention of the party to create a legal obligation. A “declaration” that is “intended to have binding effects” is considered to be a treaty. In fact, the UN glossary cites the Joint Declaration as an example of a declaration that is a treaty “in the proper sense”. Further, by following through with its commitments for years, China has unintentionally imbibed legal obligations onto itself. Hence, China’s contention that the document does not constitute legal obligations can be challenged and dismissed.
That being said, China can easily bypass its obligations under the “treaty”. Several fundamental flaws in the agreement have rendered the document practically unenforceable from its very inception. Primarily, the agreement does not provide any mechanism for its enforcement or for the withdrawal or suspension of the obligations under the document. The governing law on this matter is the Vienna Convention on the Law of Treaties, which says that “a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part”. Therefore, even if the UK claims that China has violated the terms of the agreement, the only option it has is to suspend the treaty or withdraw it, thereby freeing China from any commitment towards the spirit of the document altogether.
Further, the nature of obligations arising out of the document is entirely skewed. For instance, while China has multiple long-term obligations, including maintaining a “high degree of autonomy” of the Hong Kong area, the UK’s only commitment was to “restore” Hong Kong’s sovereignty back to China. Hence, even if the UK decides to suspend or withdraw its obligations, China essentially has nothing to lose from such a decision as the sovereignty over Hong Kong has already been restored to it by the UK. Given that China derives no long-term benefits from the preservation of the agreement, it is highly unlikely that it will be deterred from violating the terms of the document.
Moreover, the loosely worded nature of the document also provides for several loopholes that the Chinese authorities can easily exploit to defend their position before the international community. The treaty explicitly stipulates that the autonomy of Hong Kong will be restricted in “foreign and defence affairs”, both of which will be entirely the responsibility of the Chinese authorities. Moreover, the exact scope of the two terms is not defined in the agreement. Therefore, with Chinese authorities enjoying sovereignty over Hong Kong in entirety, the interpretation of the phrases now lies in the hands of Chinese lawmakers. Consequently, the National Security Law, which primarily criminalises “secession, subversion, terrorism and foreign interference”, can easily be justified as laws that are enacted in pursuance of China’s defence affairs.
While there is no relief or recourse within the Joint Declaration, the UK could also approach the United Nations to enforce Chinese compliance. However, this, too, is likely to be highly ineffective in resolving this dispute. Under the instruments of the UN, there are three options that the UK can call on. Firstly, the dispute can be brought before the UN Security Council, which is the first point of contact for any peaceful resolution of international conflicts. While the other members of the UNSC, including the UK, USA, Vietnam, Germany, and Belgium, may have a vested interest in the issue, China enjoys the veto power to block any such resolution in the UNSC against it. Secondly, an appeal before the UN General Assembly will also be redundant, as a large number of countries have highly dependent trade relations with China. In fact, recently, before the UN Human Rights Council in Geneva, China’s Hong Kong Law was supported by a whopping 53 countries, including fifteen African nations and several monarchies in the Gulf. Meanwhile, the British criticism of the law won the support of merely 27 countries, primarily from Europe, North America, and Asia. Thirdly, even calling for a special rapporteur before the UN Human Rights Council will prove to be unsuccessful as the prerequisite for such a mechanism requires the envoy to be an individual that the party being investigated approves of.
While the UK may not have any legal obligations towards Hong Kong, given the UK’s historical ties with the region and the spirit of the Joint Declaration, which established the autonomy of Hong Kong, the UK does have a moral responsibility towards Hong Kongers. Consequently, the UK has already offered to provide three million Hong Kongers, who have the British National (Overseas) Passport, the right to settle and work in its territory. However, it will have to do more than that to secure the rights of Hong Kongers and the democratic roots of the region. But with its hands tied by the lack of recourse available through mechanisms in international organisations, can a prospective trade war between the West and China be the only solution?
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Can China Be Forced to Rescind the Hong Kong National Security Law?
China's obligations towards Hong Kong are defined under the Sino-British Joint Declaration
July 9, 2020
