In response to the Foreign Affairs Committee Chair Sir Richard Ottoway’s claim that the UK has a duty to monitor the progress in the implementation of the 1984 Sino-British Joint Declaration, and the Minister for Hong Kong Affairs Hugo Swire’s affirmation that the UK not only has a ‘legal interest’ but also a ‘moral obligation’ to do so, a delegation of UK parliamentarians had planned to travel to Hong Kong in December. Amid a months-long continuing protest by Hong Kong residents who have called for direct nomination of the next Hong Kong Chief Executive in 2017, China announced the delegation would be barred from entering Hong Kong. China’s foreign ministry spokeswoman Hua Chunying pointed out that Britain no longer has the right of oversight or any moral responsibility toward Hong Kong.
So who is right?
Hong Kong island was ceded to Britain in 1842 at the end of the first Opium War while Kowloon and the New Territories were either perpetually leased after the Second Opium War or, by an 1898 treaty, given in a 99-year lease to UK. With the approaching termination of the lease in July 1997 and the need to reassure foreign investors that Hong Kong’s flourishing free market economy will continue, China and the United Kingdom reached an agreement on Hong Kong’s future set forth in the Joint Declaration.
Under this agreement the UK was to return Hong Kong in its entirety to China in 1997. In turn China promised to govern Hong Kong for 50 years under a ‘One Country, Two Systems’ policy, with ‘Hong Kong people governing Hong Kong’, and given not only ‘a high degree of autonomy’ but the same lifestyle to which they were accustomed under the British.
Nowhere in the Joint Declaration was there any specification that the UK has the duty to monitor conditions in Hong Kong after 1997. Subsequent to the signing of the Declaration, China drafted the Basic Law in accordance with the Declaration’s principles and promulgated it in 1990. The Declaration was fully implemented when the Basic Law became the de facto ‘Constitution’ of Hong Kong in July 1997 and its main purpose of a smooth transfer of sovereignty was achieved. Clearly then the UK’s legal interest in Hong Kong terminated with its implementation.
China has in fact gone much further in the Basic Law in meeting the political aspirations of Hong Kong residents. Article I of Annex I in the Joint Declaration simply states, ‘The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government’. Article 45 of the Basic Law further expands political freedom not up till then enjoyed by Hong Kong residents by asserting ‘the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures’. Note that universal suffrage here refers to one person one vote in an election after candidates are nominated.
In 2007 the Standing Committee of the National People’s Congress (NPC) agreed to Hong Kong’s request for universal suffrage in the 2017 election of its next Chief Executive. In August 2014, Beijing announced the framework for the nomination of two to three candidates by a 1200-member Nominating Committee whose members are from different subsectors, presumably broadly representative of Hong Kong society, such as education, retail, banking, social welfare and religion. Millions of Hong Kong residents would then vote to elect their next Chief Executive. From China’s point of view, the framework not only accords with the articles in the Joint Declaration and the Basic Law, but makes universal suffrage a reality only 20 years into Hong Kong’s return to China.
The ensuing protest is misleadingly characterised by the media as a civil disobedience movement. In fact, protestors demand that candidate nomination be open to the general populace for fear of Beijing’s undue influence on the selection process. But direct democracy is rarely practiced in large complex modern societies, and especially not in one newly emerged from colonial rule with few institutions to support it. While no consensus existed initially with regard to what constitutes a democratic nomination process, by now pro-democracy leaders are united in their opposition to the August framework. They accuse Beijing of not meeting their demands for ‘genuine’ universal suffrage, as they believe they could not be nominated in a pro-Beijing Nomination Committee. In effect they demand a change in the Basic Law.
These protestors have the freedom to protest beyond that enjoyed by citizens of western democracies. No city in a western democracy would have stomached a paralysing but continuing two-month-long protest with dwindling support. The Hong Kong government and police has exhibited exemplary tolerance in this respect. And China had not sent in the PLA to quell the ‘umbrella revolution’ as feared.
It is ironic for UK members of parliament to claim their country has a ‘moral obligation’ to oversee the implementation of democracy in Hong Kong. The notion of democracy for Hong Kong simply did not enter UK politicians’ heads until after the country had agreed to return Hong Kong to China. At that point the UK introduced a modicum of democracy, confined to the election of Legislative Council members, into its colony. The governor and the Executive Council were, as always, appointed by London: a wholly undemocratic arrangement.
The UK’s moral fibre is seen at its finest in Annex II of the Joint Declaration. The UK would not even grant ‘right of abode’ or citizenship to Hong Kong civil servants who feared retaliation from China for having served the British Empire faithfully. Did the UK respond with a sense of ‘moral obligation’ then? China is right: on all counts, the United Kingdom has neither the legal interest in nor moral obligation to the implementation of democracy in Hong Kong.
Ivy Lee is Emeritus Professor of Sociology at California State University, Sacramento.
Professor Lee’s commentary should be the last and comprehensive last word on the recent Occupy Central fiasco. She has also skillfully skewered the hypocrisy of the Brits.
This article by Ivy Lee is very objective. It clearly stated that nowhere in the China-UK Joint Declaration was there any specification that gives UK the duty to monitor the condition in Hong Kong after 1997. The protests had caused an economic chaos to law abiding citizens and had given the HKers a very bad impression of what democracy really is. Because of that, over 1.8 million HKers, overwhelming the initial few hundred thousands of protesters consisting mainly of onlookers, signed in to reject the protesters’ agenda. This indicates that the majority of HKers are against the protest movement and will certainly reject any future protesters’ agenda.
Ivy,
It is refreshing to read a more balanced analysis of the Hong Kong “disturbance”. Since when did Britain show her moral responsibility on the people of Hong Kong. When it took control of the Chinese island after the First Opium War, did she institute her democratic principles? Did she show any moral responsibility when she left Hong Kong people to the Japanese occupier to defend for themselves? When Britain took Hong Kong back after WW II, dis she institute Democracy and moral responsibility to her Hong Kong people?
David
Hi, Ivy and George
I agree with Ivy’s point about the UK claim to still have some kinds of rights in HK, silly on the face of it. I do disagree on some other points.
It’s incorrect to compare the slated HK voting system with the U.S. or parliamentary systems. Though citizens don’t vote directly for their president or PM, they DO vote for the people who in turn vote for that leader. That will NOT be the case in HK, so it’s a completely different situation, not comparable.
I used to fault the UK for not instituting more democracy in HK before 1997, but documents released a few months ago suggest that things weren’t so simple; China had considerable leverage over HK and the British.
As to sending in the PLA, there is no way China would do that after the worldwide condemnation after 6/4. So a stalemate ensued in HK.
There is no question that the protestors did strike a responsive chord with most HKers; even CY Leung seemed to concede that. I wasn’t there during the protests, but heard plenty negative from citizens when I went there last, in May, including from government workers. So it’s wrong to dismiss the students outright.
The Chinese government should have the right to monitor Northern Ireland governance?
Ridiculous.
Nowhere in the article did I make a direct comparison of the slated HK with the U.S. or the UK voting system. That may be the topic of another day.
No denying China has considerable leverage over HK and the UK. But the question is when China began to acquire such impact. If anyone subscribes to the notion that the Brits would, as they claimed, have introduced democracy in HK but for the consideration that they had to return HK to China (1), then he/she would have to provide more concrete evidence other than the Brits’ words. That the Brits were quaking in their boots in fear of China’s warning in the 1950’s against introducing democracy (1) is even more preposterous: that warning came from a 1950’s China which had just emerged from a civil war after the devastating Asia-Pacific War, in the midst of another costly Korean War, attempting to revolutionize the country’s agrarian and education systems, then toward the end of that decade, intent on launching the disastrous Great Leap Forward.
I am surprised 6/4 or the Tiananmen massacre is brought up without any caveat since I thought Jay Mathews’ piece in the Columbia Journalism Review (2) and the Wikileak reports (3) had settled the myth among those who not mere consumers of the popular press. Not that I am denying killings had taken place but not of students and not in Tiananmen Square proper.
Let’s say the point is not, however, the fact that a massacre had occurred, so much as China’s restraint is due to its fear of a “worldwide condemnation.” That is missing the mark for China is not a crowd pleaser, and it dances to its own tune. There is a good deal of evidence recently to support this point in its territorial claims in both the East and South China Seas.
Surely plenty of HKers express dissatisfaction with the government just as complaints exist about the state and federal governments in the US; I am dismissing neither. Nor am I dismissing the fact that many HKers want western style democracy. I am merely proposing to look beyond the surface since I seldom underestimate the soft power of the western mainstream media as a propaganda machine and the power of selective perception and presentation.
*******
References:
(1) http://www.mcclatchydc.com/2014/10/27/244820/how-thatcher-failed-to-ensure.html
(2) http://www.cjr.org/behind_the_news/the_myth_of_tiananmen.php?page=all
(3) http://www.telegraph.co.uk/news/worldnews/wikileaks/8555142/Wikileaks-no-bloodshed-inside-Tiananmen-Square-cables-claim.html
Ivy, could you explain which countries you were referring to in your remark, “…protestors demand that candidate nomination be open to the general populace for fear of Beijing’s undue influence on the selection process. But direct democracy is rarely practiced in large complex modern societies…”? If not the U.S. and not the major parliamentary democracies, who DID you have in mind?
As we all know, China had plenty of leverage even in the 1950s and 1960s, such as the ability to cut off HK’s water supply, to cite just one instance. You know of many others yourself.
Would the Brits have done more to democratize HK if not for such concerns? Neither one of us knows. But what we do know is that people in HK were satisfied with life under UK rule, and were not thirsting for democracy. But large numbers of HKers were looking at the 1997 handover to China with great trepidation, and as we know, many “voted with their feet” (if not with their ballots) by moving to the U.S., Canada, Australia and so on.
Today, many believe their fears have come true. I’m sure even you find the recent reports of intimidation of journalists to be highly troubling, if they are true. And if the California state government were to decree that the CSU system must teach patriotism, you might be asking the HK students for advice on how to set up a branch of Scholarism in Sacramento.
As to “6/4 mongering,” I’ve written tons of public material criticizing inordinate China-bashing in general and inaccurate reporting on 6/4 in particular. See for example http://heather.cs.ucdavis.edu/crrc.html coauthored with George. But the fact remains that China suffered a huge black eye over the incident, and there is no way they would consider even a hint of that this year in HK.
As I wrote in my blog post linked to in my last message, China has made huge strides in the last decade or so, improving the lives of millions. It has reduced a status in which it can afford to bend a little, and should have done so (should still do so) in the case of HK, where many residents feel the quality of their lives has declined rather than improved.
The comment from December 22, “It’s incorrect to compare the slated HK voting system with the U.S. or parliamentary systems,” means to me the comparison of the August framework (slated system) for the 2017 HK election with the U.S. and the UK systems. I had made no such a comparison. In fact, I was comparing what the HK students want to a direct democracy akin to the ancient Athenian system.
I do not respond to suppositions of what I know or should know about China’s leverage on Hong Kong in the 1950s, 60s, etc., and how that may or may not translate into pressure on the UK to refrain from introducing democracy into HK.
Nor does it make sense for me to speculate on whether I would or would not seek HK students’ advice were universities in the U.S. asked to teach patriotism, or whether I would be troubled were journalists intimidated in their work.
I also do not presume to know, given its past experience with 6/4, what China would NOT have done to address the student protest. Further I have not taken any stance on whether China has suffered “a huge black eye” over 6/4.
However I do stand by my statements that China dances to its own tune, and that “direct democracy is rarely practiced in large complex modern societies…” with large complex modern societies to include among others the European and Asian democracies.
Not just on the face of it, anyone who has read the Sino-British Joint Declaration should realize China has fully complied with the Joint Declaration. The South China Morning Post reported that even Ottaway said after the House of Commons Foreign Affairs Committee hearing, “As far as I can see, China is complying with the pledge in the Joint Declaration. They may not match how we see democracy over here [in Britain]. But my personal view is that it is difficult to point the finger at the Chinese government saying they are breaching the Joint Declaration.” Ottaway added: “A number of witnesses giving evidence to us certainly don’t think China has breached the Joint Declaration.”
Here is a clip from that hearing:
http://youtu.be/bkd1wjfaVG4
Hong Kong did not begin to buy water from China until the 1960’s. Even then, the purchase was minimal, started at just 23 million cubic meters per year, compared to 1100 million cubic meters today. The colonial HK government certainly suppressed the 1967 leftist riot with full force. So much for China’s substantial leverage over HK and the Britain.
Source:
http://www.scmp.com/news/hong-kong/article/1663521/hong-kongs-chief-executive-snubs-uk-committee-probe-joint-declaration
http://en.wikipedia.org/wiki/Water_supply_and_sanitation_in_Hong_Kong
I’m not versed in international law, and thus cannot comment on the nuances of the agreement. I don’t know what “universal suffrage” really means, and I suspect that the term has no real legal basis in the first place. I also suspect that even if China really is abbrogating the treaty, legally the UK still would have no rights, given that nearly 20 years have past since then. Of course, the rights of the HKers are a different issue.
Concerning your points about the water and the 1967 riots, we do at least seem to agree that China had some leverage over Britain regarding HK, regardless of how we might define “substantial.” Both China and the UK then had to decide what the cost-benefit tradeoff was.
From China’s point of view, there may have been very little benefit to going beyond showing the Brits their power to destabilize HK. Kill the chicken without physically touching the monkey.
What about the UK? Even positing the best of intentions on the UK’s part, they likely would have seen no real benefit to fully democratizing HK, because as I said earlier, the HK populace was not hankering for democracy. So why risk the cost of taking such action?
By the way, Britain itself was weak in the 1950s, with its economy devastated by the war. They had more pressing matters to worry about.
Professor Lee not only cherry-picks provisions of the Joint Declaration to fit her chosen narrative, she has chosen to ignore the established rules of treaty interpretation in the Vienna Convention on the Law of Treaties (which embodies principles of customary international law, and to which both the UK and the PRC are parties).
Many rules of the Vienna Convention on the Law of Treaties (VCLT) are residual in nature; they are meant to be used as discretionary aids. Assuming VCLT is applicable to a particular treaty, states are still free to depart from the rules on such issues as reservations, interpretation etc. to devise their own. Therefore, it does not make much sense for Mr. Cheung to claim that China “has ignored the established rules of treaty interpretation in the VCLT.” I encourage him to find commentaries from legal experts on the VCLT to verify the above. Or see VCLT, edited by Dörr, Oliver, Schmalenbach, Kirsten