Over the past year, and increasingly in the last few months, the people of Hong Kong have taken to the streets as China has been on a spree of introducing draconian laws, targeting individual civil liberties and constantly threatening Hong Kong’s autonomy, with a new security law being the latest addition.

China seeks to bypass Hong Kong’s Legislative Council (LegCo) and enact the law, reneging on its decades old promise of “One Country, Two Systems” which bestowed on Hong Kong a high degree of autonomy. With the aid of this legislation, China intends to reduce Hong Kong to an Orwellian State by criminalizing “treason”, “secession” & “subversion” and curtailing cherished rights like the freedom of speech & expression, free press etc.

In this article, I trace and establish China’s undeniable obligations towards Hong Kong and Britain under International Law and argue that the aforementioned measures constitute a material breach of the Sino-British Joint Declaration and the Basic Law of Hong Kong.

Disregard for the Joint Declaration

Since it’s signing in 1984, Britain has consistently considered the Joint Declaration a legally binding treaty and recognized Hong Kong’s high degree of autonomy. China, on the other hand, has thumbed its nose at it by calling it a “historical document” that has “no practical significance” or legally binding character in the present day. Under Article 3(12) of the Joint Declaration, Hong Kong was promised social and political autonomy through the “One Country, Two Systems” model for a period of 50 years, ending in the year 2047. China’s actions in Hong Kong and its interpretation of the Joint Declaration run contrary to its mutually agreed obligations.

Both Britain and China are State Parties to the Vienna Convention on the Law of Treaties (VCLT), the international instrument regulating treaties between member nations. Article 31(1) of the VCLT indicates that a treaty must be interpreted in good faith and in the light of its object and purpose, also enshrined in the principle of Pacta Sunt Servanda under Article 26, meaning “agreements must be kept”. The Declaration was signed by Britain and China on the pretext of sustaining the prosperity and socio-economic stability of Hong Kong, leaving no doubt as to the reason for its signing, even though the travaux préparatoires of the Joint Declaration remains undisclosed to the public and protected by Chinese secrecy laws.

Article 3(5), in unambiguous terms, guarantees the people of Hong Kong various rights and freedoms including those of the person, speech, press, assembly, movement, religious beliefs etc. However, China’s actions on innumerable occasions have shown utter disregard for these rights including indulgence in the abduction of individual booksellers selling “politically sensitive” publications.

The principle of contemporaneity, as developed in the case Concerning the Rights of Nationals of USA in Morocco, holds that a treaty must be interpreted according to the meaning it possessed at the time of its conclusion. The Joint Declaration was signed in order to distinguish Hong Kong’s thriving capitalist economy and lifestyle from China’s socialist society and uphold the rights and freedoms enshrined in the Declaration for fifty years. Despite these established principles, China continues to act rogue.

The Basic Law of Hong Kong

In order to implement the terms of the Sino-British Joint Declaration, the Basic Law for the Hong Kong Special Administrative Region was drafted, which serves as its de facto constitution. In arguendo, even if China considers the Joint Declaration to be invalid and non-functional, it is bound by the Basic Law of Hong Kong, which unlike an international obligation, is the domestic law and traces its roots to the Joint Declaration under Article 3(12).

The prerogative of enacting national security laws in Hong Kong is placed on the LegCo, as Article 23 of the Basic Law reads, “the Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversions against Central People’s Government.” However, in order to implement Article 23, in February 2003, the National Security (Legislative Provisions) Bill was introduced in the LegCo which was withdrawn following massive protests and debates over its potential impacts on human rights and the right to free speech and expression. China’s unilateral actions interfering with Hong Kong’s legislative process display grave disregard for the will of Hong Kong’s people and a blatant violation of the Basic Law.

Article 12 & 14 confer a high degree of autonomy on Hong Kong and limits China’s authority only to matters of defense while Article 16 bestows on Hong Kong the power to conduct its own administrative affairs and have independent executive power.

Most importantly, and the most frequently breached, Article 17 gives legislative powers to the Hong Kong LegCo and makes all laws susceptible to the scrutiny of a Standing Committee of the National People’s Congress (which is comprised only of Chinese citizens residing in Hong Kong, under Article 21). The standing committee can only return the Law in question but not amend it.

Article 18 lays down that Chinese laws shall not be applicable in Hong Kong except those listed out in Annex III to this Constitution. This provision further establishes that laws listed out in Annex III shall only be confined to those relating to defense, foreign affairs and matters outside the limits of the autonomy of Hong Kong. These confines have been breached by China on innumerable occasions.

A bare perusal of the aforesaid provisions draws a very clear picture of Hong Kong’s legislative and executive autonomy, rendering the acts of China meddling with Hong Kong’s legislature, blatantly illegal and manifestly arbitrary.

Moreover, not just autonomy, various provisions in the basic law fortify Hong Kong’s right to democracy. Article 26 lays down that permanent residents of Hong Kong shall have the right to vote and the right to stand for elections. Article 45 lays down the method for appointing the Chief Executive of Hong Kong (Head of State) by universal suffrage and in accordance with democratic procedures, while Article 68, with reference to the LegCo, lays down that the ultimate aim is the election of all members of the legislative council by “universal suffrage upon nomination by a broadly representative nominating committee.”

China, in order to curb the aforementioned freedoms came up with the Machiavellian idea of routing the election of the Chief Executive through a nominating committee occupied by pro-Beijing loyalists, rendering the right of universal suffrage futile.

Legal Action

The VCLT under Article 60 gives the victim of a breached bilateral treaty, an option to suspend the operations of the treaty in whole or in part including the right to terminate it. However, if Britain releases itself from the obligations under the Joint Declaration, Hong Kong will cease to be autonomous and will merge with the People’s Republic of China, which is exactly what China wants.

China has long guarded the situation in Hong Kong as a domestic matter and any move by the United Kingdom for action in the International Court of Justice will be viewed as a threat to China’s sovereignty, and just like the Philippines’ request for arbitration in the South China Sea case, China will reject jurisdiction.

A potential legal action may be taken by a third party state only if a nation’s obligations to the other are erga omnes, as held by the ICJ in the Namibia Advisory Opinion. It was held in the Palestinian territory advisory opinion, that “states are under an obligation not to recognize the illegal construction of the wall in occupied Palestinian territory.” Similarly, States are under an obligation to recognize the material breaches of the Joint Declaration by China and acknowledge the threat it poses to the autonomy of Hong Kong. The right to self-determination, a right claimed by people to control their destiny despite not achieving statehood under international law, has been recognized as an obligation to the international community to permit and respect its exercise, in the Portugal v. Australia (East Timor) case.

The Democratization of Hong Kong

Hong Kong’s predicament largely emanates from China’s obstruction of democratization of Hong Kong, its failure to uphold undertaken obligations and preventing the people of Hong Kong from having a say in deciding their own future. The treaty that decided the fate of Hong Kong was a vestige of a cruel past. Colonial Britain strong-armed the region for a long time, and now China seems to be repeating the pattern. However, China’s current approach is contrary to the ideals of liberty, freedom, and equality that the 20th century has embodied. China has a chance to do right by the people of Hong Kong and contribute to the advancement of International Law. How it chooses to write history is yet to be seen.

Abhinav Mathur is a penultimate year law student at the National University of Advanced Legal Studies, Kochi, Kerala, India.

Suggested citation: Abhinav Mathur, Understanding Hong Kong’s “High Degree of Autonomy” under China’s National Security Law, JURIST – Student Commentary, June 8, 2020, https://www.jurist.org/commentary/2020/06/abhinav-mathur-china-hong-kong-autonomy/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org