Treaty for a Lost City – facts or legal myths?

In normal legal disputes, the arbiter would be an independent court, but there is no final decision between China and United Kingdom, which are the five members of the United Nations Security Council that can veto any rulings at the United Nations level.

IS Hong Kong a lost city or being re-born after its baptism of fire?

Hong Kong was always a “borrowed place, borrowed time”, to quote the legendary journalist Richard Hughes (1906-1984), immortalised in John Le Carre’s novels on the intersection of media and espionage in cities like Berlin or Istanbul located at the borderlands of great power conflicts.

Having returned the city on July 1 1997, can Britain hold China to the terms and conditions of the 1984 Joint Declaration with China?

Chinese University of Hong Kong Law Professor CL Lim’s book, Treaty for a Lost City: The Sino-british Joint Declaration is a meticulously researched legal history of how the Joint Declaration came into being and whether it still has the force of law on both parties.

There is a presumption that the Joint Declaration granted democratic rights to Hong Kong. The legal story is much more complex.

This book draws on the British National Archives and study of the Basic Law of the Hong Kong Special Administrative Region (1990), the International Covenant on Civil and Political Rights (1966), United Nations Charter etc, to lay out the facts and opinions for the reader to judge who is right or wrong.

Cities and states are defined by their legal constitution, communal values, geography, culture and history.

Prior to 1841, Hong Kong was a barren rock that was indisputably part of China. Hong was ceded under the Treaty of Nanjing after the First Opium War (1839-1842); but the expiry of the 99 year New Territories lease meant that Britain could not hold onto Hong Kong after 1997.

The People’s Republic of China (PRC), following earlier Chinese governments, has never recognised any “unequal treaty” with the Western Powers, but adopted the face-saving principle that “a sovereign may delegate under international law such control or authority to another for a limited period.”

Once that sovereignty is resumed, the PRC will not brook any interference in its internal sovereign matters.

This book reads like a series of Queen’s Counsel briefs, densely argued on complex and subtle points presenting different opinions and perspectives.

In normal legal disputes, the arbiter would be an independent court, but there is no final decision between China and United Kingdom, which are the five members of the United Nations Security Council that can veto any rulings at the United Nations level.

The only appeal left is to the court of global public opinion, which is today dominated by the English-speaking media.

As media today becomes more and more ideologically driven, it is unlikely that deeply held views will be changed by legal or rational arguments.

The genesis of the Joint Declaration was the need to ensure a smooth return of Hong Kong to China.

In 1983, when the New Territories lease (covering 92% of Hong Kong) was running out, Britain initially sought to renew the lease, but found that China under Deng Xiaoping was adamant that China would resume sovereignty over Hong Kong.

With confidence slipping, the Hong Kong currency was under attack, only to be restored by a peg against the US dollar.

This gave impetus to settle the terms and conditions of return.

As the book painstakingly pointed out, British negotiators were operating from a weak hand, wanting to retain as much influence and economic benefits as possible post1997.

As described in Chapter 3, democracy under colonialism was never part of the negotiations.

Hong Kong representatives played no part in the discussions between two sovereign powers.

The Joint Declaration itself did not mention the word “democracy”. It basically stated that the Hong Kong SAR (HKSAR) “will enjoy a high degree of autonomy, except in foreign and defence affairs” (Article 2) and that rights and freedoms will be ensured by HKSAR law (Article 5).

Since the Basic Law, HKSAR’S constitution, is PRC law, the final interpretation falls to the standing committee of the National People’s Congress, not necessarily by the Hong Kong Court of Final Appeals.

The real point of dispute lies in the National Security Law, which was passed by the National People’s Congress in 2020, after the Hong Kong legislature was unable to enact Article 23 of the Basic Law.

As public disorder arose with violent protests, the practical issue was whether HKSAR government could handle them without a National Security Law.

Hong Kong was uniquely handicapped because in every other international financial centre, there exists very draconian national security laws that protect the integrity and security of the financial system, economy and sovereignty. Hong Kong was deeply polarised.

No compromise seemed possible, and continued protests and violence would have destroyed Hong Kong. Between a rock and a hard place, the National Security Law was the least painful alternative barring more physical violence.

Treaty on a Lost Place highlighted the absurd situation of two sovereigns signing one piece of paper having different points of view.

Such constructive ambiguity papered over destructive alternatives.

The last British governor Chris Patten was successful in persuading some Hongkongers that one man-one vote was what they deserve.

Whether that is a cure all for Hong Kong’s ill is another matter. That his Conservative Party leadership was elected opaquely by 0.2% of British people shows that different systems may not always practice what they preach.

Hong Kong elites failed to correct the injustices that many young faced in not providing them affordable homes with meaningful, well paid jobs.

Beijing’s mistake perhaps was to trust that Hong Kong could on her own resolve these contradictions within the larger struggle between China and the West on many fronts.

A treaty is only a piece of paper. A city is not lost to Britain or China, but lost in its own direction, which must be re-found.

The answers will not be found in international law, because that is itself being rediscovered in a new age of multipolar contestation.

This book is a major contribution to our understanding of how international law is only one of many guides to the future. Hong Kong has to rediscover her own identity inside a larger identity. That is the tragedy and opportunity facing all islands within the grand ocean of mankind.