On Sept 26, 1984, the British ambassador to China, Richard Evans, and the Chinese deputy foreign minister, Zhou Nan, initialed an agreement to determine the future of Hong Kong. This agreement, formally signed in May 1985 and called the “Sino-British Joint Declaration on the Question Of Hong Kong”, was the culmination of over two years of negotiations. These must have been very intense, and the British foreign office must still be immensely proud of its efforts, as 37 years later it is still issuing six-monthly reports on the implementation of the declaration! I am not aware of similar biannual reports being issued to the UK Parliament regarding other past declarations or treaties the United Kingdom has signed: Imagine a six-monthly report to the British Parliament on the implementation of the Treaty of Paris of 1763 on the question of Guadeloupe and if France is abiding by it!
But of course, Hong Kong is a different story. According to the conclusions of the most recent report released in June 10 (the 48th in this seemingly never-ending series), the foreign office states that the UK “will continue to honour its responsibilities to the people of Hong Kong”. This paternal, imperialistic attitude is amusing, albeit a few decades out of date. The UK has no special responsibilities toward the people of Hong Kong, nor toward any of its former colonies and territories from Afghanistan to Zambia. Its status as colonial master has long ended, and with it any special connection or responsibility. It is an undisputed fact that on July 1, 1997, Hong Kong was returned to the motherland; in the words of the declaration, “the United Kingdom will restore Hong Kong to the People’s Republic of China.” It remains supremely ironic, the UK mentioning the “responsibilities” viewing the many decades of British rule during which the people of Hong Kong had much less input in government affairs, or rights, than they do today.
The Sino-British Joint Declaration is not that long, nor that complicated to understand, and that is why it is even more puzzling that the reports to Parliament are at all necessary. Most notably, the declaration very clearly stipulates that Hong Kong shall have the status of a special administrative region of China, and while being “directly under the authority of the Central People’s Government of the Peoples Republic of China … shall enjoy a high degree of autonomy”. One cannot seriously argue that the handover did not occur, or that Hong Kong does not enjoy a high degree of autonomy with its own borders, currency, membership of international organizations, a separate legal system, etc. One cannot focus only on one half of the “one country, two systems” formula, and expect to derive a correct conclusion.
The report (six-monthly report on Hong Kong)proudly mentions that “in January, we launched a new immigration route for British Nationals (Overseas)”, … This is a clear and blatant breach of the memorandum issued by the UK as part of the Sino-British Joint Declaration
And yet this is what the six-monthly report tries to do: It grandly declares China to be in a state of “ongoing non-compliance with the Joint Declaration”, but conveniently does not state exactly which provisions are allegedly being breached, which immediately weakens the allegation. Although just released, this report covers the period July 1 to Dec 31, 2020, which is also the period just after the National Security Law for Hong Kong was passed on June 30, 2020. It logically uses a lot of ink covering the National Security Law, and the impact that has had on the HKSAR, but conveniently does not state the two most important elements in any discussion on this topic: firstly, that the Basic Law stipulates in Article 23 that 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”; and secondly, that the extreme violence, destruction and mayhem that engulfed Hong Kong for months and months clearly demonstrated the urgent need for some sort of national security law. The National Security Law that was passed by means of promulgation according to Article 18 of Hong Kong’s Basic Law only covers that which was deemed most urgent — i.e., the foreign-financed “black shirt” chaos, namely secession, subversion, collusion with foreign forces, and terrorism. The report also does not mention that Hong Kong is still obliged, 24 years after the handover, to enact a national security law according to Article 23 of the Basic Law covering the remaining offenses of treason, sedition and theft of State secrets.
Being written with an agenda in mind, the report does not mention the elements of the National Security Law which would normally give a sense of comfort: for example, the explicit statement at the beginning stating that the principle of the rule of law shall be adhered to in dealing with the National Security Law, including the presumption of innocence until proven guilty. Neither does the UK foreign office mention that having a National Security Office in Hong Kong should be quite familiar to the people of Hong Kong after the many decades of British MI5 agents and Special Branch being present in the territory before 1997.
The report proudly mentions that “in January, we launched a new immigration route for British Nationals (Overseas)”, referring to the expansion of temporary immigration to the UK for BN(O) passport holders and their dependents. This is a clear and blatant breach of the memorandum issued by the UK as part of the Sino-British Joint Declaration which states in clause (b) “No person will acquire BDTC (British Dependent Territories Citizens, the predecessor to BN(O)) status on or after July 1, 1997 by virtue of a connection with Hong Kong. No person born after 1 July 1997 will acquire the status referred to”. Speaking of the pot calling the kettle black!
Before the 49th report comes out, as it invariably will, perhaps the foreign office observers and authors would do well to have it thoroughly vetted by the international public law section of the Ministry of Justice, who one would assume better understand the provisions of the Sino-British Joint Declaration, the Basic Law and the fundamentals of international law. But maybe they will be too preoccupied with defending their government’s breaches of the Northern Ireland provisions of the Brexit Withdrawal Agreement against the EU legal actions!
The author is a specialist in international public law, and an adviser on China-related matters to both the private and public sectors. He has lived in Hong Kong for over 18 years.
The views do not necessarily reflect those of China Daily.