Can a Colonial Treaty Soundly Defend Hong Kong's Freedoms?

By what right does the international community insist that the People’s Republic of China (P.R.C.) must respect the special constitutional status of Hong Kong? After all, critics of Beijing’s policies toward Hong Kong do not just argue that P.R.C. officials should respect the autonomy of the former British colony; they argue that international law obliges them to do so. “Beijing needs to honor its commitments, beginning with the commitment China made in 1984, to respect the integrity of Hong Kong’s laws,” Vice President Mike Pence said in mid-August. Chris Patten, the last British governor of Hong Kong, agrees. “What is at stake is whether in future the rest of the world will be able to trust [Beijing] to keep its word,” he wrote in a June 2019 article entitled “Britain Has a Duty to Help Hong Kong out of this Dark Moment.” “If it breaks its commitment to Hong Kong, where else can it be trusted?”

The claim that Beijing is constrained in how it acts towards Hong Kong is based upon the idea that the P.R.C. is still bound by the provisions of the 1984 Sino-British Joint Declaration, a bilateral treaty governing the transfer of Hong Kong from British colonial rule to P.R.C. sovereign control. By signing the Joint Declaration, Beijing guaranteed Hong Kong a special status within China until at least 2047 (the “one country, two systems” formula), including detailed commitments to maintain Hong Kong’s capitalist economic system and to uphold various political rights belonging to the city’s residents. Because the Joint Declaration is still in force, the argument goes, both parties ought to uphold its provisions as a basic principle of international law.

The Joint Declaration, however, remains deeply problematic. Beijing agreed in 1984 to accept certain restrictions on how it would govern Hong Kong, but only because it wanted London to willingly relinquish sovereignty over Hong Kong Island and the Kowloon Peninsula. Without the P.R.C.’s accession to the Joint Declaration, only the New Territories would have reverted to Chinese control in 1997. It is difficult to support the general principle that colonial powers ought to have the legitimate authority to dictate the future behavior of those whose territorial integrity they have violated. Decolonization should not be conditional—no matter how virtuous the conditions attached by a decolonizing power.

London drove a hard bargain with Beijing in the early 1980s. The imbalance of obligations imposed upon each side by the Joint Declaration is often overlooked in conventional accounts of the treaty, which tend to portray Beijing as having enjoyed a stronger bargaining position than the U.K. But whereas Beijing committed to abide by a long list of stipulations regarding the future governance of Hong Kong, London agreed to virtually nothing except to restore Hong Kong to the mainland. Even those who passionately believe in the righteousness of the Joint Declaration’s provisions must admit that this asymmetry of commitments makes the document a desperately unequal treaty—an agreement that strictly limits the P.R.C.’s ability to govern its own sovereign territory, while requiring the U.K. merely to relinquish control over a colony it never should have possessed in the first place.

It is understandable that London wanted to restrict Beijing’s post-1997 governance of Hong Kong. Millions of Hong Kong’s residents were either refugees from mainland China or the descendants of refugees. Many (perhaps most) of these people had no wish to live under Chinese Communist Party rule. That the U.K. managed to secure commitments from Beijing to uphold Hong Kong’s distinct political and economic arrangements was a major triumph. But colonized states should not have to make concessions to colonizers in order to have their rightful territory restored, which is exactly what happened in 1984.

None of this denies that the Joint Declaration is binding upon the P.R.C. as a matter of international law. As a strict legal question, the treaty is almost certainly still in force. But Beijing’s critics ought to be careful about holding up the Joint Declaration as a benign instrument of international law that the P.R.C. must respect in order to prove itself a responsible world power. Like so much public international law, the Joint Declaration is badly marred with the stain of colonialism. At the very least, relying upon the Joint Declaration may not place Beijing’s critics upon the best available moral high ground.

In one sense, it does not matter whether external powers criticize the P.R.C. for abrogating the terms of the Joint Declaration, or for other transgressions like violating international human rights norms or ignoring the Hong Kong Basic Law (domestic legislation of the National People’s Congress, the P.R.C.’s supreme legislature). Beijing views its relationship with Hong Kong as a strictly internal affair, and bristles at any perception of outside inference. Those P.R.C. officials who wish to limit democracy in Hong Kong will be impervious to whatever arguments are leveled against them.

Still, foreign leaders should avoid making the Joint Declaration the cornerstone of their demands for Hong Kong. First, the claim that the international community has anything approaching a right to oversee Hong Kong gives Beijing excellent fodder to argue that outside forces are conspiring to violate Chinese sovereignty. P.R.C. propaganda outlets are already using the specter of foreign meddling to delegitimize the protests in Hong Kong and, perhaps, to justify an impending violent crackdown. It might therefore be counterproductive for outsiders to frame themselves as the rightful keepers of Hong Kong’s democratic freedoms.

Second, exalting the Joint Declaration might alienate those inside the P.R.C. who want their country to abide by established international laws but view this particular treaty as illegitimate, anachronistic, or impractical. Even if there is no chance that Beijing will admit that the Joint Declaration legitimately constrains its behavior in internal matters, the P.R.C. leadership might yet be convinced to view the wider corpus of public international law as a set of rules that must be upheld. This would be something worth fighting for. The enforceability of the Joint Declaration is not.

There is little to gain and perhaps much to lose from basing support for Hong Kong’s pro-democracy movement upon the argument that the Sino-British Joint Declaration remains in force. The immediate consequence of trying to hold the P.R.C. to the Joint Declaration’s strictures will be to harden Beijing’s resolve to assert its authority over Hong Kong. Over the long term, inflating the importance of this 35-year-old treaty may encourage Beijing to dismiss other international laws as similarly illegitimate and biased against the P.R.C.’s interests and national dignity.

If foreign governments wish to condemn Beijing for the erosion of Hong Kong’s unique political status in recent years, they should absolutely do so. But the basis of these criticisms must be something other than commitments extracted from the P.R.C. as the price of decolonization. There is higher moral ground than that.