International Commitments to Keep: Hong Kong beyond 1997
Davis, Michael C., World Affairs
Hong Kong's transfer to Chinese rule under the terms of the Sino-British Joint Declaration offers an occasion to consider the question of international compliance in respect to Hong Kong.(1) There are two interrelated levels of compliance at stake: (1) Chinese compliance with the terms of the agreement itself, and (2) the prospects for Hong Kong's promised autonomy and accepted status as a reliable partner able to comply with its international commitments. Since the Joint Declaration provides no formal method of enforcement, any assessment of the prospects for compliance in either respect must consider the views and policies of the Chinese government and the effectiveness of Hong Kong in asserting its interest. Although there are several important domestic aspects to the Hong Kong transition, which I have considered elsewhere, in this article I address the international dimension.(2) In terms of international compliance, I will discuss three factors that are important in assessing Hong Kong's prospects: first, the record to date of compliance with the Joint Declaration; second, the formal provision for Hong Kong's future status and the venues it opens for influencing outcomes; and third, the tension between the Chinese world view and the emerging world order, as a context in which Hong Kong may play an important role both independently and in relation to China.
PRE-1997 COMPLIANCE WITH THE JOINT DECLARATION
Under China's "one country, two systems" model and its objectives, the Joint Declaration can only sensibly be understood to have promised Hong Kong a liberal capitalist democratic system with a high degree of autonomy.(3) In 1984, when the agreement was signed, China was in the initial phase of its policies of economic reform and reaching out to the developed West. In contemplating resumed Chinese sovereignty, China implored Hong Kong people to "put their hearts at ease."(4) Nothing less than the strongest commitment to human rights, the rule of law, and local, highly autonomous, democratic self-rule was considered sufficient to the tasks of this assurance. In the Sino-British Joint Declaration, China essentially guaranteed Hong Kong liberal constitutionalism. As the Joint Declaration is the benchmark by which to measure China's international commitments concerning Hong Kong, any assessment of China's compliance should consider whether these key liberal commitments are being kept. For purposes of this assessment, liberal constitutionalism may be understood to include three components: democratic elections, with free and fair multiparty contests; human rights, including freedom of expression; and the rule of law, including adherence to principles of legality.(5)
The Joint Declaration largely reflects these liberal constitutional components, including promises that the legislature be chosen by elections;(6) the guarantee of a broad panoply of human rights, fully half of which relate to freedom of expression; and the guaranteed continuance of the common law system, along with constitutional judicial review. The implicit constitutional judicial review commitment is evident in a series of explicit guarantees, including maintenance of the common law, the supremacy of the basic law, independence and finality in the local courts, the required application of the International Covenant on Civil and Political Rights (ICCPR), and the right of citizens to challenge inconsistent executive acts in the courts.(7) Further, the legislature is directed to forward newly enacted laws to the National People's Congress (NPC) "for the record," suggesting that NPC review was not intended. All of these guarantees of the Joint Declaration were stipulated to be included in a basic law to be drafted by China.
The Hong Kong Special Administrative Region (HKSAR) basic law was drafted in the last half of the 1980s and promulgated in April 1990.(8) The Chinese government employed a lengthy and engaging drafting process. …