The decision by China’s National People’s Congress (NPC) to create new national security legislation for Hong Kong has seen criticism erupt in parts of the Hong Kong community and internationally. The US has raised the stakes in response, saying it will no longer treat Hong Kong as ‘autonomous’.
Many critics have attacked the process set out by Beijing, arguing that any national security legislation should be considered by Hong Kong’s legislature. That was indeed the original intention when the Basic Law was promulgated in 1990 but, since an aborted attempt to introduce legislation in 2003 and consistent lobbying against reviving it, Beijing seems to have concluded an alternative approach is needed.
The decision is not itself a law, but it authorizes the NPC Standing Committee to draft legislation which will then be added to Annex III of the Basic Law - Hong Kong’s mini-constitution - under a provision in Article 18 of the Basic Law. This will then be promulgated in Hong Kong by the chief executive, a rare example of ‘executive order’.
This is likely to happen quickly, which makes it difficult to address the substantive arguments that the legislation will undermine basic rights and freedoms. Exactly how it will be used in practice remains to be seen.
But while international human rights covenants do allow in principle for national security legislation, this law is likely to be broader in scope than the draft withdrawn in 2003, when careful efforts were made to incorporate rights protection as much as possible.
Impossible to now reach consensus
The context is important. Hong Kong’s politics has become increasingly polarized and radicalized, with challenges to Chinese sovereignty and regular violence, both on the streets and in the legislature. It is virtually impossible to see how consensus can be rebuilt.
What started out as a series of protests against an extradition bill a year ago has morphed into an anti-government movement with calls for the US to ‘liberate’ Hong Kong, which consciously situates itself at the frontline of a ‘new Cold War’ between autocracy and democracy.
Politicians overseas looking to fuel arguments that China is an existential threat have been happy to embrace this as another weapon in their armory. As US-China relations have worsened dramatically, Hong Kong has become a political football.
The confluence of these local and global forces has raised the stakes for Beijing, leading it to conclude that Hong Kong politics is no longer just an irritant, but a threat.
Since a high-level party meeting in October 2019, it has sought to counter that threat, not by abandoning ‘one country, two systems’, but by developing a more proactive approach to Hong Kong within that framework, making use of powers which are explicit or implicit in the Basic Law. The national security legislation is part of this new approach.
Meanwhile, Hong Kong’s situation generates plenty of discussion in the UK, the former colonial power and a signatory to the 1984 Sino-British Joint Declaration, but little real debate about what the UK’s interests in Hong Kong are now.
It has been supporting ‘one country, two systems’ in a way which both respected Beijing’s role, and encouraged Hong Kong’s ‘high degree of autonomy’ - all while developing a partnership with Hong Kong to help the UK pursue its broader economic, social and global governance objectives in Hong Kong, across the rest of China and beyond.
But the UK should take a hard look at the reactive approach it has adopted over the past year which, for the most part, has been critical of the governments in both Hong Kong and Beijing. If this has had any impact at all, it has hardened positions and reduced the space for compromise and dialogue. And it has certainly led to growing suspicion in Beijing about the UK’s motives, and a decline in British influence.
There also needs to be a clearer understanding of the UK’s status since 1997. The Joint Declaration says the UK’s ‘economic interests in Hong Kong will be given due regard’ but, in spite of protestations to the contrary, it does not give the UK any ongoing responsibilities for Hong Kong’s freedom or well-being, and claiming otherwise is misleading. The UK is no longer a major actor in Hong Kong, and neither should it be 23 years after the return of sovereignty to China.
However it would be wise for British politicians not to declare the handover settlement ‘dead’ as plenty of features from ‘one country, two systems’ remain robust, especially in the financial and economic sphere. For the moment, these continue to serve Britain’s interests as well as those of Hong Kong, though they are likely to be more difficult to exercise now that the US has announced it no longer considers Hong Kong enjoys a ‘high degree of autonomy’. London would be well advised to consider the impact on Hong Kong and the UK’s interests there ahead of Washington’s political goals.
A strategic approach has been lost in London’s Hong Kong policy over the past year, and the developments in Hong Kong have undermined the UK’s wider interests there. But working towards what the UK can actually achieve in these changed political circumstances - rather than trying to second-guess Hong Kong’s governance - should now be at the heart of the British approach to its former colony.
Dr Tim Summers, Senior Consulting Fellow, Asia-Pacific Programme (based in Hong Kong).