A prominent Hong Kong developer with links to Beijing explained China’s cavalier attitude toward its commitments on Hong Kong. China, he said, views its treaty with Great Britain returning the colony to Chinese rule as it would a business contract — perpetually open for renegotiation. In societies based on the rule of law, a contract may signify the end of a negotiation, but in China it begins a process of continual reinterpretation, as each party seeks advantage. The developer’s analogy explains why China has felt free to renege on the autonomy, elected legislature, and independent judiciary it promised Hong Kong in the Sino-British Joint Declaration of 1984. It doesn’t explain, however, why Britain and the United States have gone along.
The latest provocation came on January 19, nearly six months before Hong Kong reverts to China at midnight on June 30. A Beijing-appointed transition group recommended repealing or amending 25 Hong Kong laws, including those protecting political activity and ties to foreign organizations. The proposals now go to Beijing’s rubber-stamp National People’s Congress for approval, then to the puppet Provisional Legislature whose appointment Beijing engineered on December 21.
The creation of this Provisional Legislature was the most serious blow yet to the future Hong Kong was promised in the Joint Declaration. A 400-member Selection Committee designated by Beijing met just over the Chinese border to avoid a court challenge in Hong Kong. The committee gave 51 of its own members seats in the Provisional Legislature, along with 10 politicians defeated in 1995 for seats in Hong Kong’s elected Legislative Council, or Legco. The Democratic party, which swept those elections, refused to participate in the charade. Hong Kong governor Chris Patten pronounced the exercise “stomach churning” and noted that the Provisional Legislature was chosen by 0.15 percent of the electorate. In Hong Kong, protesters marched to the headquarters of the New China News Agency (Xinhua), Beijing’s de facto embassy. Some carried small trash cans mounted on sticks, a play on the Cantonese words for legislature (laap faat wui) and garbage (laap saap).
None of this was surprising. China has kept up a drumbeat against the Legco for two years. Indeed, the real question about Hong Kong’s future has been not whether China would live up to its commitments, but what, if anything, the United States would do when China broke them.
The answer apparently is, not much. The meeting between presidents Bill Clinton and Jiang Zemin in Manila in November confirmed that the United States will not let China’s mistreatment of Hong Kong interfere with closer relations. Thus, President Clinton chose not to mention, let alone protest, the imminent attempt to replace an elected legislature with an appointed one. Nor did Madeleine Albright mention the Provisional Legislature at the hearing for her confirmation as secretary of state, saying only that she was ” watching” the Joint Declaration “very closely” and hoped China wouldn’t kill ” the goose that laid the golden egg.”
Albright’s comments reflect the Clinton administration’s policy of avoiding confrontation with China over Hong Kong. While stressing that it wants Beijing to comply with the Joint Declaration, the administration claims to be unable to determine that an appointed legislature — or any other Chinese action — violates the treaty’s terms. Last July, assistant secretary of state Winston Lord told Congress, “The United States does not offer legal interpretations of agreements to which it is not a party. This is especially true in cases like that of the proposed provisional legislature in Hong Kong that involve a question of treaty interpretation, and where the parties themselves have not stated their legal positions. By the way, the British have not stated their legal position.”
This narrow approach has sidelined the United States during the transition. It is also disingenuous. The United States is required by law to evaluate compliance with the Joint Declaration. The U.S.-Hong Kong Policy Act of 1992 directs the State Department to report annually on “the status of, and developments affecting, the implementation” of the Joint Declaration. It also requires the president to determine whether Hong Kong has sufficient autonomy to merit the continued application of U.S. laws and agreements with Hong Kong after reversion. In making this determination, the president is to refer to ” the terms, obligations, and expectations expressed in the Joint Declaration.”
Even if U.S. law didn’t provide a basis for opposing Chinese violations of the Joint Declaration, nothing would preclude the United States’s making compliance with this or any other treaty a tenet of its China policy. By not respecting its international obligations, China puts itself in a camp with nations the United States deems unworthy of good relations. While the United States may not have the standing to take China before the World Court, as Britain has threatened to do, it can and should tie relations with Beijing to China’s meeting its international commitments.
All this makes a sad end to Hong Kong’s history as a British colony. Great Britain acquired Hong Kong in three parts as a result of the Opium Wars of the 19th century. Hong Kong island and the Kowloon peninsula were ceded in perpetuity in mid-century. The New Territories, reaching up to China’s southern Guangdong province, were the subject of a 99-year lease executed in 1898. As the end of this lease approached, Prime Minister Margaret Thatcher raised the matter in Beijing in 1982. Two years later, Great Britain and China signed the Joint Declaration and three annexes spelling out terms for Hong Kong’s autonomy as a Special Administrative Region of the People’s Republic of China.
The future that China promised Hong Kong in the Joint Declaration was better than could have been expected from a deal made over the heads of the colony’s people. Hong Kong would enjoy autonomy from the mainland, with a chief executive appointed by Beijing but accountable to an elected legislature. Hong Kong’s common-law legal system would remain unchanged. Criminal prosecutions and maintenance of public order would be under local control. Personal freedoms would be protected.
Recognizing Hong Kong’s importance to the mainland economy, China pledged: The “socialist system and socialist policies shall not be practiced.” Hong Kong’s dollar would remain in circulation and freely convertible, though without the queen’s picture. Markets for foreign-exchange gold, securities, and futures would be protected. Hong Kong would remain a free port and a separate customs territory, issuing travel documents for its citizens and maintaining economic and cultural ties with other countries.
It is difficult to say whether Beijing intended to follow through on these commitments. The two key Chinese leaders when the Joint Declaration was signed in 1984, Deng Xiaoping and Zhao Ziyang, have left the scene. In any event, after the massacre of democracy protesters in Tiananmen Square in 1989, Beijing apparently regretted the arrangement that Deng had called “one country, two systems,” and it moved to exploit one of the few weaknesses of the Joint Declaration.
As an international agreement, the declaration had to be incorporated into Hong Kong law. Instead of assigning the job to an elected Hong Kong legislature, however, the drafters gave the task to the National People’s Congress in Beijing. Beijing jumped at the chance to rewrite its obligations. The resulting Basic Law of the Hong Kong Special Administrative Region, issued in April 1990, deviates from the Joint Declaration in important respects.
Where the Joint Declaration calls for an elected legislature, the Basic Law provides that only one third of the legislature will be elected by July 1, 1997, and that no more than half its seats will ever be required to be filled by election. Where the Joint Declaration says Hong Kong’s courts will have the power of final adjudication, the Basic Law will be interpreted by the Standing Committee of the National People’s Congress in Beijing. Where the Joint Declaration says Hong Kong’s legal system and statutes will not be changed, Article 23 of the Basic Law directs the Hong Kong legislature to pass laws prohibiting “any act of treason, secession, sedition, subversion against the Central People’s Government or theft of state secrets” and against “foreign political organizations conducting activities or establishing ties” with Hong Kong political organizations. The implications of Article 23 were driven home last November by the case of Wang Dan, a Tiananmen student leader sentenced by China to 11 years in prison for plotting to subvert the government by publishing op-eds in foreign papers and taking a correspondence course from the University of California, Berkeley.
In public, Britain kept quiet about the Basic Law, while behind the scenes it agreed with China not to object to these inconsistencies with the Joint Declaration. As a result, the Basic Law has played an insidious role in the transition. Beijing justifies its latest attack on civil liberties in Hong Kong, for example, as necessitated by the Basic Law.
Nor did Great Britain stand in the way when China trained its sights on the judicial system. Instead, in 1995, China and Britain together overrode the Joint Declaration’s provision for a new high court to take appeals formerly heard in London. First, they agreed to give the Beijing-appointed chief executive a role in judicial selection, a function the Joint Declaration had assigned to an independent commission. Then they gutted Hong Kong’s tradition of allowing judges from other countries that use the common law to sit on the court, a practice protected in the Joint Declaration and deemed important to the courts’ ability to withstand political pressure after reversion. London and Beijing restricted the number of overseas judges on the court to one.
Most important, Chinese and British negotiators agreed that “acts of state, such as defense and foreign affairs, et cetera,” will be outside the court’s jurisdiction. The words “such as” will be interpreted by the Standing Committee of the National People’s Congress, allowing Beijing to prevent challenges to the government or assertions of personal liberties from being heard, let alone upheld, in court. Britain relentlessly promoted the agreement on the Court of Final Appeal, maintaining it would actually boost international business’s confidence in Hong Kong.
Throughout the assault on the Joint Declaration, the United States has stayed silent. Neither the Bush administration nor the Clinton administration has objected that China is breaking its commitments to Hong Kong, much less indicated a willingness to do anything about it. Reactions are stronger on Capitol Hill.
Last summer, the Senate condemned the appointment of a legislature as violating the Joint Declaration and urged Beijing to allow the Legco to serve out its four-year term ending in 1999. The bipartisan Congressional Caucus on Hong Kong, chaired by senators Connie Mack and Joseph Lieberman and representatives John Porter and Sam Gejdenson, protested the appointment of the Provisional Legislature. Porter will reintroduce a bill granting special U.S. visas to journalists so they will have somewhere to come if they get into trouble with Beijing. And the Senate Foreign Relations Committee plans hearings, on U.S. law-enforcement interests in Hong Kong as well as on the March report required under the U.S.-Hong Kong Policy Act. Amendments to that law are also under review, as is a proposal to sanction members of the Provisional Legislature.
The administration should drop its insistence that the United States is incapable of recognizing violations of the Joint Declaration. It should also suspend preparations for a Sino-American summit. It must refuse to deal with the Provisional Legislature, while showing support for the elected members of the Legislative Council. Members of both bodies are expected in Washington this spring, and the administration should demonstrate a clear preference.
Incoming chief executive C. H. Tung is expected to visit Washington, too. He was largely an unknown quantity until last week, when he embraced as “fair and reasonable” the recent actions by the Beijing transition group gutting civil liberties. When Tung comes to town, he should get an earful from administration officials and the Congress. He should be informed that his relations with the United States will hinge on his fidelity to the Joint Declaration, his refusal to dissolve the Legco, and his appointment of democrats to important positions in the Hong Kong government.
Finally, the United States must persuade our allies to join in holding China to its commitments. Washington has already waited too long to draw the line on China’s sellout of Hong Kong.
Ellen Bork is senior professional staff member for East Asia and the Pacific for the Senate Committee on Foreign Relations.
