In London and Brussels, China’s imposition of a new national security law on Hong Kong has sparked a widespread allegation that it violated the Sino-British Joint Declaration. Signed in 1984, the document declares Hong Kong’s autonomy to be “unchanged for 50 years” under Chinese rule after the 1997 handover.

However, upon close examination, the Declaration, which is supposed to “settle the future of British Hong Kong”, is full of ambiguity and technical flaws, contributing to today’s crisis.

Chris Patten, Hong Kong’s last governor, in 1997. Photo: GovHK.

To Beijing, that’s business as usual. But to London, it’s different. Will Britain acknowledge these deficiencies and take up moral responsibility?

A ‘declaration’ not a ‘treaty’

Hong Kong was ceded from the Qing Empire after its defeat by the United Kingdom under the treaty of Nanking in 1842.

Modern China considers this one of the unequal treaties: British colonial rule in Hong Kong has never been legitimate in its perspective.

Hence, Beijing’s “resumption of sovereignty over Hong Kong” did not require British consent, nor another treaty, which would ratify the original unequal one. Moreover, accepting British sovereignty before 1997 breaks the Chinese narrative that Hong Kong has always been part of Chinese territory.

The Declaration evades the statutory role of Britain in Hong Kong. By failing to mention the Treaty of Nanking in the Declaration, the UK tacitly accepted this “administrative role” defined by China, fundamentally undermining the UK’s role in monitoring Hong Kong after the handover.

China’s stance was in stark contrast to the UK’s expectation to sign an “agreement”, according to the memoir of Sir Sze-Yuen Chung, who was in touch with the top officials in the Chinese and UK’s negotiating teams. Nevertheless, the document was finalized as a “declaration” at China’s insistence. 

Chinese ‘self-restraint’

Unsurprisingly, many Hongkongers were skeptical of the Declaration before the handover. In response, Britain brought in international experts to make the case that the Declaration was internationally binding.

One argument was that both countries registered the Declaration to the United Nations, so China is expected to act accordingly. However, while the United Nations requires member states to register all bilateral agreements for record-keeping purposes, it has no monitoring mechanism over the agreements. 

A protester tearing the Basic Law of Hong Kong at the Legislative Council president’s desk covered by a pre-Handover Hong Kong flag. Photo: Kris Cheng/HKFP.

Was the British government aware of the Declaration’s lack of power to hold China accountable? According to a declassified file at the British Foreign Office (FCO 40/3624), the British government, after the 1989 Tiananmen Square incident, consulted with international law experts on what Britain could do if China violated the Declaration before 1997the answer was not much.

First, China technically could not “seriously violate” the Declaration before 1997 unless it seized Hong Kong by force; even if so, Britain could not sue China in an international court (as both countries’ consent is required to start a trial).

As for violations after 1997, Margaret Thatcher had an exchange with a private assistant to the Foreign Secretary in a 1992 memorandum. Unfortunately, the document will remain classified until 2047, the year that the Sino-British Declaration expires.

The Åland Islands – a ‘One Country, Two systems’ success

A different joint agreement might have set Hong Kong on a different path. The Åland Islands are an autonomous region of Finland, located between its mainland and Sweden. They have historically been a buffer zone between two European camps (Russia/Finland versus European Union/Sweden) and suggest what Hong Kong could have become.  

Previously the westernmost point of Imperial Russia, the islands became part of Finland after the empire’s collapse at the end of WWI. However, the inhabitants of the Åland Islands were mainly of Swedish descent, which eventually made the islands’ sovereignty a territorial dispute between Finland and Sweden.

The two countries agreed to bring the issue to the newly established League of Nations (the United Nations’ predecessor) for arbitration in 1920. 

In 1921, Finland, Sweden, and other member states signed the Åland Convention, which granted Finland the sovereignty and established the islands as a neutral, demilitarized zone.

However, the Convention simultaneously tackled the issue of how to preserve the islanders’ autonomy and unique Swedish culture without the threat of assimilation from the Finland mainland.

Solely relying on the Finnish government’s self-restraint would not work, as we have seen how this played out in Hong Kong, where China has repeatedly violated the ‘high degree of autonomy’ promised to Hong Kong. 

Mariehamn, Åland Islands. File photo: Rojs Rozentāls, via Flickr.

The Convention asserts that if the demilitarized status of the Åland Islands changes, the signatories all have the right to intervene. It also stated that the League had the right to oversee the implementation process of the Convention. 

The Convention uses specific language to clarify how to guarantee the islands’ autonomy: it authorises Finland and Sweden to define the limits of the autonomy of the Åland Islands, which was later incorporated into Finland’s law.

Examples include giving Finnish’ mainlanders’ no voting rights in the islands, restricting land ownership exclusively to local citizens, and recognising Swedish as the sole official language. 

Peace and autonomy on the Åland Islands continue to this day, which is accomplished not only by Finland respecting the agreement, but also by granting multiple member states within the region the power to intervene when necessary. The Convention prevented Finland from unilaterally changing the arrangement.

‘Loose language’

As David Wilson, member of the British negotiating team, recalled, “We had wanted to write a bookwhich would have looked rather like the Encyclopedia Britannicawhile the Chinese wanted about two or three sides of A4 paper.”

Unlike the Åland Convention, the Sino-British Joint Declaration was vague in wording, allowing China’s unilateral interpretation to suit its interest. For example, paragraph 3(5) says: “Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region (HKSAR)”.

To most people, this statement focuses on the various kinds of freedom listed. However, China places its emphasis on the phrase “ensured by law”, meaning that the freedoms are not necessarily in accord with the Universal Declaration of Human Rights, but can be “legally” redefined by adding new laws in Hong Kong.

Take another example in paragraph 3(2): “The HKSAR will enjoy a high degree of autonomy, except in foreign and defense affairs”. A common understanding is that this outlines the areas within Hong Kong’s autonomy. China’s focus, however, is on “highly autonomous”, meaning that the actual level of autonomy depends on its own interpretation.

Paragraph 3(9) shows yet another illustration of ambiguity, stating that the UK and other countries’ “economic interests in Hong Kong will be given due regard”. Precisely what constitutes “economic interests” and “due regard” are left undefined.

Under this clause, how would the Chinese government justify its bullying of Cathay Pacific last year over its staff joining the Hong Kong protests?

The 1997 Handover ceremony. File Photo: GovHK.

As soon as Hong Kong was handed over in 1997, the Joint Declaration had served the purposes of both signatories: China resumed sovereignty over Hong Kong, and the UK retreated from the city smoothly.

Now, we can only watch as history runs its course. The remaining question is: if the declaration is really broken unilaterally, will Britain fulfil its self-claimed moral responsibility to the people of Hong Kong?

Simon Shen

Dr Simon Shen is the founding chairman of Glocal Learning Offices (GLOs), an international relations start-up company. He also serves as an adjunct associate professor at the University of Hong Kong, the Chinese University of Hong Kong and the Hong Kong University of Science and Technology.