Does Hong Kong have a future divorced from Beijing?

Does Hong Kong have a future divorced from Beijing?

Hong Kong has seen weeks of protests sparked by a proposed law that would allow residents of the special administrative region (SAR) to be extradited to mainland China for prosecution.

Increasingly, Hong Kong residents are questioning the continued viability of the “one country, two systems” policy that has maintained Hong Kong’s relatively high degree of economic freedoms and personal liberty since the British returned it to China in 1997.

Some are pushing for Hong Kong to rejoin the United Kingdom or gain full independence, fearful that the inevitably growing integration with China will erode Hong Kong’s liberal democracy.

Before the recent protests, the increased influence of Beijing on Hong Kong’s internal political system sparked significant concern.

Electoral reforms in 2014–15 gave the Chinese Government — and effectively the Communist Party — the authority to screen prospective candidates for Chief Executive (head of government) of the region. These reforms were also used to disqualify pro-independence candidates from election to the Legislative Council.

In light of this, the notion of separating Hong Kong from China and it either becoming independent or the possibility of Britain resuming sovereignty over the region has become a major issue.

The status of Hong Kong is almost unique in international law, a situation it shares with Macau, the other Chinese SAR.

While both fall under Chinese sovereignty, the “one country, two systems” arrangement formulated by former Chinese leader Deng Xiaoping ensures that Hong Kong and Macau maintain significant autonomy from the socialist mainland. This includes a largely independent judiciary, different currencies, capitalist economies, and separate immigration, extradition and customs policies.

These guarantees will remain in place for at least 50 years under the terms of the 1984 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 (Sino-British Joint Declaration). What will happen after 2047 is unclear.

The status of Hong Kong immediately prior to China resuming sovereignty was that of a British Dependent Territory, a term that has since been replaced by “British Overseas Territory”.

Strictly speaking, such territories are not part of the UK. They are, instead, typically self-governing but non-independent territories that have a close relationship with Britain on matters such as defence and foreign affairs.

The handover of Hong Kong coincided with the expiration of the 99-year lease of the New Territories by China to the UK, which was granted in 1898. The UK had acquired sovereignty over Hong Kong island in perpetuity under the 1842 Treaty of Nanking, and over additional territory under the 1860 Convention of Beijing, but ceded these back to China under the Sino-British Joint Declaration.

Realistically, the UK had no choice but to cede these back — the territory over which it had sovereignty were dependent on the New Territories leased to it. The UK was in a weak negotiating position as China would resume control of the New Territories either way.

Any future change in sovereignty over Hong Kong will depend on China ceding it to another country or recognising its independence.

Hong Kong cannot simply “default” to British sovereignty — the Sino-British Joint Declaration transferred sovereignty to China, just as previous treaties transferred sovereignty to the UK. Hong Kong is clearly, as a matter of international law, Chinese territory.

Changing the status of Hong Kong requires action on the part of China.

Unlike the UK in the lead up to the expiration of the New Territories lease, China faces no great external pressure to cede Hong Kong. Likewise, although domestic resistance to Beijing is growing, China has consistently maintained a tough stance against independence movements. To that end, Beijing has disqualified pro-independence candidates on the basis that their stance is incompatible with their duty to uphold the Basic Law of Hong Kong (the SAR’s constitution), which states that the territory is an inalienable part of China.

China is unlikely to recognise Hong Kong as independent, and the United Kingdom would be in violation of the pact it made with the Chinese Government if it recognised Hong Kong’s independence. Other countries might recognise Hong Kong as independent if Beijing was no longer able to effectively exercise its authority over the SAR, but few countries would be able match China’s military might should the Chinese Government assert its sovereignty.

Hong Kong can be differentiated from Taiwan (officially the Republic of China), a territory that is de facto independent from the People’s Republic of China, despite it being claimed by and claiming sovereignty over the mainland. Internationally, Taiwan is not widely recognised as independent because China refuses to have diplomatic relations with any country that does so.

Thus far, mainland China has maintained a position of non-interference in Taiwan, not least because it is aligned with — though not recognised by — several major economic and military powers. Taiwan has avoided declaring its independence for two reasons: it would weaken claims of the Republic of China over the whole of mainland China by implicitly recognising the legitimacy of the People’s Republic, and it could prompt military intervention from Beijing.

The awkward position of Taiwan in international law is unlikely to be repeated in the case of Hong Kong.

Although there is international pressure on Beijing to maintain Hong Kong’s autonomy as a major financial centre, the Chinese Government is clearly not going to accept a totally hands-off position that would see Hong Kong become de facto independent like Taiwan, evidenced by its continued “interference” in local affairs.

If the UK could show that Beijing violated the Sino-British Joint Declaration, then it may have a case for reclamation of part of the territory. For now though, Hong Kong seems destined to remain a special administrative region of China, but the extent to which the Chinese Government will exercise its authority depends on the international community maintaining pressure on China to respect Hong Kong’s autonomy.