China broke its deal with Britain 27 years early
Is Britain really prepared to admit up to three million Hong Kong people for settlement, as the British foreign minister told parliament last week? The Chinese ambassador in London thinks so, and engaged in megaphone diplomacy by threatening Britain with consequences for interfering in China’s internal affairs.
Immigration has been a political hot potato in Britain ever since East African Asians were excluded from Britain by the Commonwealth Immigrant Act 1968, even though they were citizens of the UK and colonies under political pressure to leave East Africa.
More importantly, Britain finally exited the EU last January, primarily to repatriate sovereignty and regain control of her borders – a euphemism for reducing immigration in the UK. Having just left the EU to curtail immigration, the idea that Britain would now admit three million Hong Kong people should be taken with a pinch of salt.
There is nothing in the 1984 Sino-British agreement on Hong Kong that legally obliges Britain to admit Hong Kong people with dual British and Chinese nationality.
The 1984 Sino-British Declaration dealing with nationality was given effect in UK domestic law by the Hong Kong Act 1985 and the Hong Kong British Nationality Order 1986 under which Hong Kong people were given British Nationality (Overseas), but not the right of abode in the UK. If Britain has any obligation towards Hong Kong people as a group, it is in international law that entitles Britain to raise concerns about Hong Kong’s new national security law, without being accused of interfering in the internal affairs of another country. Perhaps the offer of refuge was made to add credence to Britain’s legitimate concerns about the turn of events in Hong Kong. Who knows?
The population of Hong Kong is about seven million, of whom about three million are dual British and Chinese nationals, though they are not the young people who have been demonstrating in the streets of Hong Kong since last year and against whom the new national security law is directed.
The British argue that China’s new law to safeguard national security in Hong Kong breaches the undertaking that “the Government of the Hong
Kong Special Administrative Region will be composed of local inhabitants”. It also breaches the undertaking that the life-style in Hong Kong will remain unchanged and that “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 Hong Kong.” And furthermore that “private property, ownership of enterprises, legitimate right of inheritance and foreign investment would be protected by law.”
The Chinese government rejects this accusation as baseless and a gross interference in her internal affairs and argues that the Hong Kong national security law is necessary to maintain national unity and territorial integrity and secure public order in Hong Kong.
Under the 1984 Sino-British Declaration Margaret Thatcher adopted a pragmatic approach and agreed to return the whole of the territories comprising the colony of Hong Kong at the end of the lease of the New Territories on July 1, 1997, but on the understanding that China would preserve Hong Kong as a special administrative region to be governed as a liberal democracy that would remain unchanged for 50 years from the date of the handover.
Hong Kong’s new national security law promulgated last week acknowledges Hong Kong’s high degree of autonomy and identifies the human rights that are protected but only as general principles rather than the entrenched rights they are supposed to under the 1984 Declaration.
It creates criminal offences punishable with life imprisonment or not less than 10 years for ill-defined offences of secession and subversion at a time when many people in Hong Kong feel the need to express themselves and demonstrate against interference from China that could easily fall foul of the new offences.
As the end of the 50-year moratorium on changes to the status of Hong Kong as a liberal democracy approaches, the offences against secession and subversion are certainly in breach of freedom of expression and the right to demonstrate.
The powers given to the authorities to investigate national security offences are draconian. They are those of a police state in the sense that extensive powers are given to the police, for example, to search premises and electronic devices and to freeze and forfeit property without any judicial input. Measures requiring a person who publishes information or any service provider may be required to delete offensive information; and
with the approval of the chief executive, the carrying out of interception of communications and conducting covert surveillance on any person who is suspected of being involved in the commission of an offence endangering national security may be authorised.
However, the most blatant breach of the 1984 declaration is the establishment in Hong Kong of an office for safeguarding national security by the Central People’s Government in Beijing contrary to the China’s declared intention that only local inhabitants would comprise the government of Hong Kong.
As someone put it, the problem with the new national security law is that contrary to the 1984 declaration it changes the lifestyle in Hong Kong from a liberal democracy into an illiberal police state 27 years too early.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge