Wisconsin International Law Journal

Hong Kong is an International Legal Experiment

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Sean O’Reilly1

There is a trio of old Chinese curses that goes something like this: “may you live in interesting times,” “may you come to the attention of those in authority,” and “may you find what you are looking for.”2 In today’s Hong Kong, it appears that all three have come true.

Hong Kong’s current protest movement has raised several profound questions. It has forced us to ask ourselves, among other things, “what is Hong Kong?,” “where is it now?,” and “where is it going?” This essay is interested in rethinking the first of these questions. Hong Kong, heung gong, or xiang gang has been called many things: “Asia’s World City,” “city of protest,” and a “cultural desert.”3 But, this piece seeks to induct a new label into the motley crew of Hong Kong cognomens: “international legal experiment.”

I. What is an International Legal Experiment?

The label “international legal experiment” is not a mere linguistic convenience, rather it is also a lens through which Hong Kong can be made legible to itself and international law. This rethinking of Hong Kong was inspired by Nathaniel Berman’s fascination with interwar developments in European international law.4 Through the example of the United Nations’ plan for Palestine in 1947,5 Berman draws together the common themes that ran through interwar international law’s solutions to various national and ethnic conflicts.6

The shared features of these international legal “experiments” were: self-determination, guarantees of minority protection, provisions for individual emigration, internationalization, and supranational integration.7 Through the combination of these heterogenous elements, “complex policy proposals” were seen as the “best way for responding to nationalism” and the “self-evident . . . basis for pragmatic problem-solving” on the international level.8 The differing combinations and permutations of these themes allowed interwar international law the flexibility to adapt to the exigencies of a given situation, whether that be Upper Silesia, the Saar, or Macedonia.9 But the core international law’s new evolution was how it “bypassed the traditional question of state sovereignty” in favour of a negotiation between the two polarities of an “autonomous international law” and an ascendant European nationalism.10 It was an “intellectual revolution” that aimed to transcend nineteenth century international law’s “statist positivism” (i.e., the “sovereign state [is] international law’s foundational unit”) and “liberal nationalism” (i.e., the ideas of a “nation” or “peoples” built on “that synthesis of Enlightenment and Romantic ideals”).11

This tendency of interwar international law was, argued Berman, a “form of early twentieth century ‘modernism.”’12 This modernist turn borrowed from the era’s “high modernists” who “sought to dismantle the ossified culture of the nineteenth century by drawing on the energy of the so-called ‘primitive’ sources of cultural energy.”13 International legal modernism, as Berman construed it, opened up international law “to the vital energy of nationalism, while reshaping nationalism by endowing it with legal form; the new international law would thereby be both more vital and more sophisticated than its statist positivist predecessor.”14 This experimentalism was the legacy that interwar European international law left us.15

II. Hong Kong is an Experiment of What Sort?

The preceding paragraphs were not to imply that the same label of modernist international legal experiment must be applied mutatis mutandis to Hong Kong, but to settle the immense intellectual debt owed to Berman’s masterful analysis of the shifting currents of interwar international law. Indeed, as Berman himself ponders, international legal modernism is a strand of intellectual and legal history marked as much by its titanic failures as its wonderous innovations.16 Nevertheless, its influence and enduring legacy cannot be denied, which is precisely why the questions posed by interwar international law should now be rethought in the Hong Kong context.

After a century and a half of colonial rule, Hong Kong had to be returned to China, but the question was how this was to be done.17 To the British, especially in the wake of the Tiananmen Square massacre, the return of Hong Kong without a transitional mechanism in place guaranteeing essential rights and freedoms would have been a staggering betrayal.18 To the Chinese, although the idea of a swift military takeover was floated (and occasionally threatened), peaceful reunification was deemed ideal for pragmatic, political, and economic reasons.19 The legal, socio-economic, and political differences between Mainland China and Hong Kong at the time were significant, and bringing Hong Kong in line with Mainland while maintaining its economic utility would be a challenge. The solution was a transitional mechanism that both appears right at home with Berman’s interwar high modernists but is also quite different—the Sino-British Joint Declaration and the Hong Kong Basic Law.20

It is this resort to international law to qualify Chinese sovereignty that makes Hong Kong so interesting as a legal construct. Chinese sovereignty over Hong Kong would be “resumed” while the territory would be permitted to “enjoy a high degree of autonomy.”21 In fact, the Chinese government is prohibited by the Basic Law (that it helped draft) from interfering “in the affairs which . . . Hong Kong . . . administers on its own . . . .”22 To solve the quandary of Hong Kong’s return, direct rule was substituted with “One Country Two Systems,” while overt Chinese sovereignty would be in abeyance until 2047.23 Hong Kong’s autonomy arrangement, which includes substantial leeway for self-governance, along with a weak form of separation of powers, an independent judiciary, and strong human rights protections, comes across as a (partial) bypass of Chinese sovereignty and the creation of a form of “sub-sovereignty.”24 Further, Hong Kong’s status as a transitional arrangement certainly also echoes interwar Europe (e.g., Upper Silesia); but it is here where Hong Kong starts to look very different to its interwar counterparts.

The most striking difference must be the context in which this experiment is taking place. The interwar experiments in international law were products of their circumstances, which is why Hong Kong is not an international legal experiment of the same kind. Nor can Berman’s six features of international legal modernism be directly transplanted into the Hong Kong context. Modern Hong Kong’s creation was not a product of the interplay between competing European nationalisms and autonomous international law. Instead, one reading is that international law was able to balance the larger Chinese nationalistic enterprise with the views of the local population through a temporary transitional arrangement that preserves the status quo and limits Chinese sovereignty.25 At the risk of overloading the label, this essay also suggests that Hong Kong is a “postmodern” international legal experiment; or that it retains the essential experimental character that international law is capable of, albeit with a heavy postmodern flavour.

This postmodern flavour permeates One Country Two Systems, as Hong Kong’s current status is suffused with paradox, aporia, and even irony.26 A few short examples suffice to illustrate how. Despite its origins in a binding treaty,27 the “Hong Kong Question” has moved far away from internationalization with self-determination (for Hong Kong people) explicitly precluded and perhaps on the verge of criminalization.28 Further, international discussion of Hong Kong now revolves less around breaches of the Joint Declaration and more about how foreign powers are meddling in China’s “internal affairs.”29 Instead of supranational integration, China’s constant massaging of the (geographical, political, and legal) boundaries of One Country Two Systems has created a new, peripheral Hong Kong nationalism.30 This radical new movement (itself a product of China’s state-building nationalism) threatens to undermine the entire regime of the Joint Declaration and Basic Law, as they advocate secession and independence.31 Lastly, final adjudication in Hong Kong now often takes place in the shadow of the National People’s Congress Standing Committee (“NPCSC”), whose tendency is to interpret the Basic Law prompted more often by political phraseology than substantive law.32 Twenty-odd years after its inauguration, the experimental autonomy regime created by the Joint Declaration and Basic Law is finding itself pulled in different directions by contradiction, leaving a vast gulf of aporia in its midst.

III. Conclusion

So with the aporia of One Country Two Systems laid bare, juxtaposed with an increasingly hard-line Central People’s Government, widespread social unrest, and a lame duck local administration, one naturally asks: “why bother?” Is it not the case, as some claim, that China is the sole important driver of Hong Kong politics and that future development will always come down to realpolitik and not law (let alone international law)?33 The answer, especially considering Hong Kong’s tumultuous 2019, must be in the negative. The contradictions of One Country Two Systems have not destroyed it but have instead opened up another playing field for experimentation. The tools are there and while the Joint Declaration and Basic Law are still extant, they should be (and are) put to work in the courthouses, in universities, and on the streets.34 It is fully acknowledged that this is one of many potential readings of Hong Kong, but that is the beauty of postmodern reasoning: its “sense of chance and contingency, the melding of categories, the resistance to dogmatic certitudes [and] the openness to the future” that encourages creative solutions.35 Hong Kong will not be “solved” by a simple realignment with the ideological monoliths that are “China,” “independence,” or even “international law.” But, through the experimentation, reconfiguration, and combination of these forces, as well as a deconstruction of the aporia that is One Country Two Systems, Hong Kong’s way forward need not be dystopic.

Footnotes

  1. ↑ 1 Sean O’Reilly is an aspiring barrister and current PCLL candidate at the Chinese University of Hong Kong. He holds and LLM in Public International Law from the London School of Economics and an LLB from the Chinese University of Hong Kong.
  2. ↑ 2 These “curses” are likely neither old nor Chinese as little written evidence of them in Chinese exists. The closest Chinese expression is “better to be a dog in days of peace than a human in times of war.” See 3 Feng Meng-long, Stories to Awaken the World 40 (Yang Shu-hui & Yang Yun-qin trans., Washington University Press ed. 2009). Nevertheless, these “curses” are widely repeated in English. See, e.g., Hunter S. Thompson, Kingdom of Fear: Loathsome Secrets of a Star-Crossed Child in the Final Days of the American Century 65 (Penguin Modern Classics ed. 2015).
  3. ↑ 3 For deconstruction of these labels, see John Flowerdew, The Discursive Construction of a World-Class City, 15 Discourse & Soc. 579, 605 (2004); Antony Dapiran, City of Protest: A Recent History of Dissent in Hong Kong (2017). Ackbar Abbas, Hong Kong: Culture and Politics of Disappearance 6 (1997). Against the charge of Hong Kong being a cultural desert, the author can offer only this response: “You say our society is a desert? If this is really the case, although it’s desolate it should give you a sense of peace; although it’s empty it should give you a sense of infinity. Why then would you call it chaotic, gloomy and capricious?” (translation mine) from Sleep, http://www.millionbook.net/mj/l/luxun/yc/024.htm [https://perma.cc/6N6C-R28T] (Chinese); or Lu Xun, Wild Grass 68 (Peking Foreign Languages Press trans. 1974).
  4. ↑ 4 Nathaniel Berman, “But the Alternative is Despair”: European Nationalism and the Modernist Renewal of International Law 106 Harv. L. Rev. 1792 (1993). Further references to “international law” mean “European international law” especially in the context of Berman’s analysis. Id. at 1901.
  5. ↑ 5 G.A. Res. 181(II), at 131 (Nov. 29, 1947).
  6. ↑ 6 Berman, supra note 3, at 1798–800.
  7. ↑ 7 Id. at 1796.
  8. ↑ 8 Id. at 1798.
  9. ↑ 9 Id. at 1858–59, 1875, 1893–98.
  10. ↑ 10 Id. at 1798–99.
  11. ↑ 11 Id. at 1800–03.
  12. ↑ 12 Id. at 1799.
  13. ↑ 13 Id. at 1804, 1804 n.51.
  14. ↑ 14 Id. at 1803.
  15. ↑ 15 Id. at 1898–99, 1903.
  16. ↑ 16 Id. at 1899–903.
  17. ↑ 17 There were British attempts to retain parts of Hong Kong as only the New Territories were leased, with the remainder of Hong Kong being ceded in perpetuity. These were swiftly rejected by the Chinese. See Peter Wesley-Smith, Unequal Treaty 1898–1997: China, Great Britain, and Hong Kong’s New Territories 322 (1998); Margaret Thatcher, The Downing Street Years 261–62 (1993); cf. 3 Deng Xiao-ping, Our Basic Stance on Hong Kong, Renmin Ribao (Aug. 4 2004), http://theory.southcn.com/llzhuanti/jndxp/wrwj/3/200408040924.htm [https://perma.cc/UKU6-9WPY].
  18. ↑ 18 For the continuing perception and relevance of Tiananmen in Hong Kong, see Francis Lee & Joseph Chan, Generational Transmission of Collective Memory About Tiananmen in Hong Kong: How Young Rally Participants Learn About and Understand 4 June, 22 Journal of Contemporary China 966, 983 (2013).
  19. ↑ 19 New archival material has revealed that an invasion of Hong Kong was threatened in the 1950s in response to plans for self-government. See Gywnn Guilford, The Secret History of Hong Kong’s Stillborn Democracy, Quartz (Oct. 11 2014), https://qz.com/279013/the-secret-history-of-hong-kongs-stillborn-democracy/ [https://perma.cc/YW8J-7WA8] (citing The National Archives, FCO 40/327 ‘Constitutional Development of Hong Kong’).
  20. ↑ 20 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, China-U.K., Dec. 19, 1984, 1399 U.N.T.S. 33 [hereinafter Joint Declaration]; Xianggang Jiben Fa (H.K.) [hereinafter Basic Law].
  21. ↑ 21 Joint Declaration, supra note 19, at 3(2).
  22. ↑ 22 Basic Law, supra note 19, at art. 22. Note, however, that Hong Kong does not administer everything “on its own.” See, e.g., arts. 13 & 14.
  23. ↑ 23 Compare Joint Declaration, supra note 19, at 3(12) with Berman, supra note 15, at 1893 (describing the situation in Upper Silesia).
  24. ↑ 24 Johannes Chan & C.L. Lim, Law of the Hong Kong Constitution 3.005 (2d ed. 2015).
  25. ↑ 25 Some caution is, of course, required here. A different reading of Hong Kong may frame it as a return of what was already owed to China with international law as an uninvited interloper, necessary only because Hong Kong’s return involved a transaction between two sovereigns. China’s claim to the territory was indeed sound both legally and historically. However, Hong Kong’s existence as a concept within Chinese nationalism (e.g., as an end to China’s “century of humiliation,” a repudiation of its “unequal treaties,” and a stepping stone to Taiwanese reunification) should not be ignored either. See Dong Wang, The Discourse of Unequal Treaties in Modern China (2003); William Callahan, National Insecurities: Humiliation, Salvation and Chinese Nationalism, 29 Alternatives 199, 212 (2004).
  26. ↑ 26 Here it is instructive to draw on Derrida’s use of “aporia.” Borrowed from Aristotle and placed within his deconstructive project, it represents not just the impossible, impracticable, or paradoxical, but a zone in which the boundaries between problem and solution become hazy. See Jacques Derrida, Aporias 11–16 (1993).
  27. ↑ 27 This is not accepted by many mainstream Chinese scholars, who argue that Hong Kong draws its normative authority solely from the Chinese constitution. For arguments why this is not correct, see Alvin Cheung, Road to Nowhere: Hong Kong’s Democratization and China’s Obligations under Public International Law, 40 Brook. J. Int’l. L. 465, 504–05 (2015).
  28. ↑ 28 This has mainly been manifested in the yet to be enacted art. 23 of the Basic Law. See Ng Kang-Chung, Fear and Loathing: Which Way Forward for Article 23 National Security Law in Face of Stiff Opposition in Hong Kong, S. China Morning Post (H.K.), Nov. 22, 2017, https://www.scmp.com/news/hong-kong/politics/article/2121035/fear-and-loathing-which-way-forward-article-23-national [https://perma.cc/964K-K2T5].
  29. ↑ 29 Tanna Chong & Stuart Lau, Beijing to Britain: Stop Interfering With Hong Kong’s Internal Affairs, S. China Morning Post (H.K.), Sept. 17, 2013, https://www.scmp.com/news/hong-kong/article/1311049/beijing-britain-stop-interfering-hong-kongs-internal-affairs [https://perma.cc/EM2N-79PD].
  30. ↑ 30 Brian Fong, One Country, Two Nationalisms: Center-Periphery Relations Between Mainland China and Hong Kong, 1997–2016, 43 Modern China 523 (2017).
  31. ↑ 31 Tony Cheung & Jeffie Lam, Ban on Hong Kong National Party Over “Armed Revolution” Call Met with Both Cheers and Fear, S. China Morning Post (H.K.), Sep. 24, 2018, https://www.scmp.com/news/hong-kong/politics/article/2165439/hong-kong-issues-unprecedented-ban-separatist-party [https://perma.cc/A6M6-E36G].
  32. ↑ 32 Under the Basic Law the NPCSC has a “general and free-standing power of interpretation…under art. 67(4) of the PRC Constitution and art. 158(1) of the Basic Law.” Lau Kong Yung & Others v. Director of Immigration [1999] 2 H.K.C.F.A.R 300, 345. Many suspect that the use of this power is becoming increasingly politicized. See, e.g., Johannes Chan, A Storm of Unprecedented Ferocity: The Shrinking Space of the Right to Political Participation, Peaceful Demonstration, and Judicial Independence in Hong Kong, 16 Int. J. Const. L. 373, 379–81 (2018).
  33. ↑ 33 See Stephan Ortmann, The Umbrella Movement and Hong Kong’s Protracted Democratization Process, 46 Asian Aff. 32 (2015).
  34. ↑ 34 The Court of Final Appeal’s response to the threat of NPCSC interpretations is a pertinent example. Through sheer common law ingenuity, the Court has largely steered contentious issues (e.g., pertaining to human rights) away from the NPCSC’s attention by (i) avoiding implicating any question of PRC law that would trigger an interpretation, and (ii) heavily grounding discussions in common law legal principles (that are unfamiliar to the NPCSC, which is Chinese political body) thereby minimizing the chance of capricious interpretations and erosion of rule of law. See Po Jen Yap, Constitutional Review under the Basic Law: The Rise, Retreat and Resurgence of Judicial Power in Hong Kong, 37 H.K.L.J. 449, 459 (2007).
  35. ↑ 35 John D. Caputo, Truth: The Search for Wisdom in the Postmodern Age 80 (2016).