The Situation in Hong Kong: The New Era Begins With the National Security Law and the Cancellation of the Tiananmen Vigil

(Hong Kong police ban city’s annual Tiananmen Square vigil for first time in 30 years, citing Covid-19 threat).

Hong Kong police have officially banned the city’s annual Tiananmen Square vigil for the first time in 30 years, citing ongoing social-distancing measures and health concerns amid the Covid-19 pandemic. The vigil’s organiser, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, said alliance members would still enter Victoria Park to observe a moment of silence that night, and called on the public to light candles across the city and join an online gathering to commemorate the June 4, 1989, crackdown. * * * The vigil, where calls for an end to “one-party dictatorship” have been routinely heard, is under a fresh spotlight this year as Beijing moves forward with a tailor-made national security law for Hong Kong. The law will prohibit acts of subversion, secession, terrorism or conspiring with foreign influences in the city. (Hong Kong police ban city’s annual Tiananmen Square vigil for first time in 30 years, citing Covid-19 threat).

This, it might be said, represents the new state of affairs in Hong Kong in the wake of the determination by Chinese Central Authorities to approve a National Security Law for the HKSAR, and the subsequent declaration of the United States that Hong Kong was no long autonomous of the rest of the nation, a view shared by the US's Anglo-Australian allies. Even as these states declared the special status of Hong Kong was voided, Chinese authorities declared that nothing of the kind happened, only on adjustment to the core conditions within which that special status could be managed. One side privileged the treaty under which the territory was returned to China in 1997; the other on the fundamental character of sovereignty. COVID-19 here merely provided a cover for a quite decisive move now manifested publicly in a most dramatic way.

The Sino-British Joint Declaration, signed 19 December 1984, signed between the United Kingdom and China, provided the formula through which both leased and ceded portions of the British Crown Colony would revert to Chinese sovereignty from July 1, 1997 but as a special administrative region subject to certain expectations about its administration specified int he document.  These expectations, in the aggregate, have been commonly referenced as the principles of "One Country, Two Systems."  China's obligations under the Treaty, and the UK (along with the generalized interest of the international community in the protection and integrity of treaties) were to "remain unchanged for 50 years" that is until 30 June 2047 (Sino-British Declaration §3(¶12).

Yet nothing remains unchanged, not even the administration of a treaty, especially one that is intimately bound up with issues of sovereignty. In retrospect, the status of Hong Kong as a special administrative region of China will likely be seen as consisting of two phases. The dividing point might likely be May 2020 and the declaration by Chinese officials and institutional bodies to adopt for Hong Kong a National Security Law applicable to the SAR and the consequential international reaction.

This post looks back to 1997 and forward to 2047 to consider the fundamental rupture in the concept of Hong Kong that occurred in 2020, and what that suggests both for the future of the Special Administrative Region, and the evolution of more flexible definitions of sovereignty within international orders.  It suggests that a useful way of understanding the Declaration, and the evolving conception of "One Country, Two Systems" is to divide the period between 1997 and 2047 into an initial international  phase for One Country Two Systems in Hong Kong (1997-2020), and now a national phase for One Country Two Systems (2020-2047).     

Let us suppose it is the year 2120.  From that vantage point it might be possible that our progeny will be taught the history of Hong Kong this way: 

For many centuries Hong Kong was an island of little significance to an Empire whose seat (and interests) usually lay elsewhere.  It became strategically important in the wake of the first of the great wars that exposed the decadence of the Empire when the island was ceded to the British in 1842 after the First opium War, along with a sliver of coastal area (Kowloon) ceded in 1860.  Those ceded territories plus a larger territory leased by the Empire to Britain for 99 years in 1898.  China was entitled to the leased land in 1997, and insisted on the return of ceded territory (because the treaties under which they were ceded were unequal--but then all treaties, including those that China imposed on those people's whose territories they conquered in the long centuries of Chinese development were inherently unequal in the same way). 

Without the leased territories, the remaining land was indefensible and of marginal strategic value, and Britain decided to cede its own territory back to China at the time the lease for the rest ended. But Britain was able to extract significant concessions from China to that end.  Those were memorialized in the Sino-British Joint Declaration, signed 19 December 1984, and the establishment of the "One Country, Two Systems" policy. The Declaration was supposed to extend from the handover of all territories in 1997 until 30 June 2047 and constituted an international obligation of China, though one with respect to which there was no authoritative interpretive mechanism.  That was left to politics--and politics was a matter of power and global influence.As a result, the history of the Declaration, and of the character of the Special Administrative Region created can be divided into two distinct phases.

The first phase might be eventually understood as the international phase of the Hong Kong transition. This was a phase in which much prominence was placed on the "Two Systems" portion of the basic principle of the SAR's organization and operation. It was in place from 1 July 1997 until May 2020.  And it will be recalled as the period when Hong Kong was formally national (a part of China) but functionally international (a global city within which the international community had a formal stake pursuant to the Sino-British Declaration.  It reflected the intention  of the British (and global) side of the declaration which at the time had the authority to make that interpretation authoritative.  It was an interpretation that China tolerated (for its own strategic reasons) but did not embrace.

This international phase was a product of, and characterized by, an adherence to the loftiest aspirations of a transnational constitutional movement that saw its apogee between 1945 and 2016.  It was marked by a core premise of sovereignty deeply embedded in international principles and subject, broadly, to the constraints of international law (e.g., God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century).  It saw no difficulty in the concept of sovereignty as a porous concept which could be shared, constrained, detached, borrowed and limited by a higher law of the collective of states within the international order.  More specifically the international phase might be understood as grounded in the development of a set of specific characteristics of autonomy around the principles of the International Covenant of Civil and Political Rights. It was an autonomy built on the development of the productive forces of law, courts and free civil expression, even if under the long shadow of sovereign authority exercised at the national level. That would have been the context in which the narrative of the decision to deny the vigil permit would have been understood.  "“COVID-19 must not be used as an excuse to stifle freedom of expression,” said Joshua Rosenzweig, the group’s deputy director for East and Southeast Asia. “With this ban, and a disastrous national security law looming, it is not clear if Hong Kong’s Tiananmen vigil will ever be allowed to take place again.”" (Hong Kong Blocks Annual Vigil Commemorating Tiananmen Square Crackdown).

This was a phase in which Hong Kong was constructed as a special international city, one built on transnational institutions, law, and politics.  Hong Kong was the expression of the ideal of political globalization  one deeply embedded in the emerging discourse of these ideals among the international intelligentsia. But it was an international city constructed out of the narrative of the progressive and liberal democratic international order--a city built on and managed through, the product of, international law and principles.  Nominally tied to a domestic legal order, it was meant to serve as a model on which an international normative order could actually be constructed on the ground.

The operative result, and the narrative constructed in support of it, was that the Special Administrative Region was in a permanent phase of full integration with the international political and economic community.  It represented the new era of internationalized sovereignty for China.  But it was also a model for other places as the way "forward" toward an internationalized ideal, obne protected in concert by the international community.  But of course, that was the problem; such a state of affairs could last only as long as there was will in the international community to make good on its aspirations, especially in the face of national opposition.

The second phase might eventually be remembered as the national phase of the Hong Kong transition. It began with the delayed session of the Chinese National People's Congress in May 2020 and could be marked (for those who find such markers of value) to have commenced formally from the day that the NCP formally directed the enactment by its Standing Committee of a National Security Law for Hong Kong (here). It will be recalled as the period during which Hong Kong transitioned from an international to a purely domestic space within China and more closely aligned with national aspirations and methods. During this period the international attachments of Hong Kong that separate it from the rest of Chinese sovereign territory will be reset--slowly at first, but atr an increasing pace. This reflects the intention of the Chinese side of the declaration, which could only be realized once China had the power and standing to wrest effective control from the internationalists. It was and remains an interpretation that the international community tolerated when it had no effect, and then, after 2020, opposed with increasing vigor. 

The national phase was a product of, and characterized by, an adherence to the loftiest aspirations of a post global sovereignty. It was marked by a conception of the international as inherently subordinate to, and transposable only within, the national context of a domestic constitutional order and subject to the vagaries of its political-economic model.  Sovereignty was an internal affair of state, as was the transposition of international obligations with respect ot any portion of the national territory.  It saw no problem with the notion of international law as a set of political obligations administered at the international level through the language and formalities of law, but still at its core no more than the political undertaking among states, valuable only to the extent that they remained mutually advantage and produced a win win result.  More specifically the national phase might be understood as grounded in the development of a set of specific characteristics of autonomy around the principles of the national political-economic model as the expression of the principles in the International Covenant on Economic, Social, and Cultural Rights. It was an autonomy built on the nurturing of an institutional framework through which productive forces could be developed, security and stability (social order) could be maintained, and the integrity and coherence of the nation respected. It was useful as a middle space for the projection of domestic aspirations abroad organized through programs such as the Belt and Road Initiative. It was a special economic zone with extra waivers, waivers that were the temporary price necessary to be paid to ensure a peace transfer of sovereignty. Protection of the economic objective required, as a consequence, protection against the three evil forces of separatism, extremism, and terrorism (China’s war on the “Three Evil Forces”).

This was a phase in which Hong Kong was constructed as a special international city, but one built on the internationalization of economic activity.  It was a city deeply embedded within the domestic legal order of the state which claimed sovereignty, but was the highest expression of a special trade zone. That, indeed, was how the SAR itself marketed its self construction:  "Hong Kong has positioned itself to become the world city of Asia. This positioning is designed to highlight Hong Kong's existing strengths in areas such as financial services, trade, tourism, transport, communications, and as a regional hub for international business and a major city in China." (Hong Kong, Asia's World City). The object is to construct an "international city" the way that London and New York could claim that status.  To that end, the state, not the international community, could provide the waivers necessary to meet this economic objective but in a way that preserved the core objectives of that political order--stability, security, and sovereignty. It was to be a brand, and an aid to marketing the SAR. (Ibid).

The operative result, and the narrative constructed in support of it, was that the Special Administrative Region was in a temporary transitional phase from foreign colony to integral (and integrated) part of the nation. That transition was to be used to strip away direct international connection to the extent they would not be useful for national objectives.  What remained was tolerated only at the sufferance of the national authorities, though they were committed to strict compliance with Treaty obligation.  The strictness of that interpretation was to be undertaken wholly within the state apparatus and grounded in the core principles of Chinese Marxist-Leninism and te CPC Basic Line in the current stage of historical development.

This second phase will last until 30 June 2047.  At that time, depending on the stage of historical development of China, Hong Kong might be absorbed within the greater Pearl River Urban complex long in the making.  The form of that absorption remains to be be seen.  Perhaps it will retain a vestigial special status as a free trade or export zone; perhaps it will serve as a special space within which foreigners might operate under rules a little different than elsewhere in China.  Or perhaps it will become a district of a larger urban space. What will be beyond dispute, though, is that after 30 June 2047, Hong Hong will become an integral part of the vanguard responsibility of the Chinese Communist Party under whose leadership, and subject to its Basic Line, the Hong Kong administration will be expected (like the rest of China) to operate. 

From this vantage point it is easier to understand the discursive and operational stances taken by all of the principal actors around the situation in Hong Kong.  The Chinese State and the United States and its allies held and continue to hold substantially incompatible views of the circumstances and meaning of the transfer. Each has much invested in their own narrative.  For China it is an essential part of its own nation of sovereignty and national integrity.  For the rest it is an essential part of what is left of that grand vision of transnational constitutionalism and multilateral mutuality within the logic of markets, of globalization, and of the core principles proceeding from civil and political rights based cultures. For the people of Hong Kong the result was inevitable and tragic.  A divided society, from the elites down to the most humble working person, it appears that both sides will by 2047 experience the tragedies of shifting narratives and its quite personal effects for a long time to come. .