Last week, 15 pro-democracy lawmakers resigned en masse after Beijing passed a resolution that resulted in the disqualification of four of its members from the legislature. The move comes as the latest fallout in the ongoing struggle for democracy that engulfs Hong Kong.
Hong Kong’s pro-democracy protests erupted after the extradition bill was introduced in April, which would allow criminal suspects – or in other words, those that Beijing does not like – to be extradited to mainland China.
Opponents of the controversial bill say that it exposes people in Hong Kong to the threat of unfair trials and judicial process, as well as violent treatment by Communist Party officials. Many fear that it will be used to target activists, journalists and dissidents.
After weeks of protest, Hong Kong Chief Executive Carrie Lam eventually said the bill would be suspended indefinitely. It is germane to point out, that the top political post of chief executive is chosen by a ‘nominating committee’ of 1,200 people, most of them from a pool of pro-Beijing elites.
Despite the suspension, protests continued to rage on for fear that the bill could be revived at a later date, and demands were made for the bill to be withdrawn completely, which finally happened this September.
The protests have also seen harrowing levels of violence and chaos. Examples include the stabbing of a pro-Beijing lawmaker by a man pretending to be a supporter, an 18-year-old shot in the chest with a live bullet, another protestor shot by a policeman at close range, and a man set on fire by anti-government protesters.
Perhaps unsurprisingly, Chinese President Xi Jinping, using incendiary rhetoric warned against separatism, saying any attempt to divide China would end in “bodies smashed and bones ground to powder”.
To provide a little historical context, Hong Kong is a former British colony which was handed back to China in 1997. The territory was promised “a high degree of autonomy” under the Basic Law – Hong Kong’s mini-constitution.
It has its own judiciary and a separate legal system from mainland China, and its citizens have enjoyed many freedoms and rights unheard of in mainland China, including freedom of assembly and freedom of speech. However, these freedoms expire in 2047, when the Basic Law does, and it is not clear what Hong Kong’s status will then be.
But in the 22 years since Hong Kong reverted back to Chinese rule, Beijing has been chipping away at the autonomous status of Hong Kong, tightening its grip over the city and overseeing an erosion in freedom of speech, education, academic thought, independent journalism, judicial independence and political rights. For example, in 2019, Reporters Without Borders ranked Hong Kong 73rd out of 180 regions and countries – a drop from 15 years earlier, when it consistently ranked in the global top 20.
So, what of the British obligation to its former colony? The 1984 Sino-British Joint Declaration obligates Beijing to guarantee Hong Kong’s autonomy until at least 2047, under the One Country, Two Systems principle. Upon the agreement of the treaty, the UK agreed to hand over Hong Kong to China in 1997, ending over a century of British rule.
The Sino-British Joint Declaration is legally binding under international law because it enjoys status as an international treaty. As it is registered by the United Nations (UN), any dispute over the treaty can be resolved at “any relevant organ of the UN”, the most obvious being the International Court of Justice (ICJ).
The UK now considers China to have violated the treaty for the third time, with the violations paving the way for possible sanctions. Foreign Secretary, Dominic Raab said:
“Beijing’s imposition of new rules to disqualify elected legislators in Hong Kong constitutes a clear breach of the legally binding Sino-British Joint Declaration. China has once again broken its promises and undermined Hong Kong’s high degree of autonomy.”
However, bringing the matter to the ICJ presents four salient issues. Firstly, China can reject the jurisdiction of the Court because they must agree that arbitration is binding before any proceedings can begin, something which China is unlikely to agree to.
Secondly, while the declaration entitles the UK to act against China if it violates the terms of the treaty, the UK is not actually under any legal obligation to take said action.
Thirdly, whilst adhering to the terms set out by the declaration is a legally binding obligation, the declaration does not set out any specific recourse if said terms are violated, or any other monitoring mechanisms, least of all an arbitration clause.
Whilst the UK could claim reparations for the breach, China is likely to reject all of these demands. On the other hand, it could go some way in undermining China’s position on the global stage and send a strong signal to other states to review their relationship with the communist state. Finally, in practice, the big economic powers tend not to use the ICJ as an arena to solve their disputes.
Alternatively, the ICJ does not need the permission of China to provide an advisory opinion, as it has done on many occasions on the request of specific UN organs. Yet, another practical consideration is the influence and economic clout of China and its undue influence over certain General Assembly member countries. Therefore, if the issue of Hong Kong is raised by the General Assembly, it may prove to be little more than an errant thorn in the side China.
Attempts by the UN Security Council members to bring a resolution have, thus far, proved fruitless. Earlier this year, China blocked a Trump administration effort to hold a United Nations Security Council meeting on the proposed national security law on Hong Kong, stating the law “would threaten Hong Kong’s democratic institutions and civil liberties”.
However, as some commentators have argued eloquently, the obligation owed by the UK is not just of a legal nature, but of a moral one too. Hong Kong is the only former UK colony that has not been allowed to decolonise. Repeated attempts to democratise Hong Kong and to establish genuine self-government, have been thwarted by Beijing, which cannot countenance a Chinese political system independent of the Chinese Communist Party.
The British government acquiesced to Beijing at the time, and now the UK must right a historic wrong. Therefore, it is a moral imperative that the UK acts when petitioned by its former oversea citizens.
The UK has historically resisted sanctions against China for fear of provoking an important trade partner and disrupting access to the Chinese market. This, combined with the consideration that sanctions against China have not been effective in the past, may have meant the financial risks involved in moving against China in such a marked way were calculated to be far higher than any potential moral gain.
However, the dramatic shift in tone by the British government marks a welcome return to the UK as a traditional global champion of human rights, but the government must go even further.
Despite the economic threats posed by a post-Brexit world, they must respond to the breach of obligations, as stated in the treaty, with a persistent, strong condemnation of Beijing, a suite of harsh sanctions, demand reparations, and offer full British citizenship to Hong Kongers.
To do this would not only fulfil a legal and moral obligation but would also carve out an opportunity for post-Brexit global Britain to take its place as an ardent defender of liberty and human rights across the globe.