Media  Foreign Affairs and National Security  2020.06.11

So far it's two strikes for China

the japan times on June 01, 2020

Protesters clash with security forces and set patrol vehicles on fire. Police arrest hundreds of frustrated young people on the streets while luxury shops are looted at the center of the city. Is this Hong Kong? No, it's Minneapolis, Atlanta, New York City or one of other two dozen big cities in the United States.

In Hong Kong, in contrast, protesters are reportedly being overwhelmed by the city police. Compared to last year's mass protests in Hong Kong against a proposed extradition law, the current furious demonstrations against national security laws being imposed by Beijing seem to be much smaller in size and there is an air of resignation about the future.

Beijing has already crossed the Rubicon. President Xi Jinping seems to be determined to implement the new security laws as a fait accompli in Hong Kong. This, however, is not the first time that China has defied the rule of law in the international community and challenged it with the Communist Party's rule by decree.

Beijing's decision on Hong Kong involves three grave mistakes that are legal, political and international in nature, respectively. As Chris Patton, the last British governor of Hong Kong, warns, China's latest move against Hong Kong's freedom is "a threat to all liberal democracies." The following is my take on Beijing's recklessness:

Legally speaking, Article 18 of the Basic Law, Hong Kong's de facto constitution, stipulates that mainland China's "National laws shall not be applied" in Hong Kong "except for those listed in Annex III" and "The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III."

The Basic Law also provides that Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government," or "... political organizations ... from establishing ties with foreign political organizations." Unfortunately, Hong Kong has failed to enact such laws.

Article 18, however, also states that laws "listed in Annex III shall be confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy." It is obvious that China has stretched the interpretation of the Basic Law and its new national security laws cannot be added to Annex III.

Politically, the imposition of the new national security laws symbolizes the beginning of the end of "one country, two systems" to which China has committed. It also reflects the erosion of democratic practices in Hong Kong, which Beijing has tried to neutralize for the past 23 years.

The "one country, two systems" principle has been a cornerstone of Hong Kong for two decades. So many political, economic, and socio-cultural interests in Hong Kong have been contingent on this delicate concept that its erosion would trigger deterioration of the values of Hong Kong.

Finally, from a diplomatic point of view Beijing's recent move constitutes a clear violation of the international agreement that is officially registered at the United Nations. The Sino-British Joint Declaration was signed in Beijing by Chinese Premier Zhao Ziyang and British Prime Minister Margaret Thatcher on Dec. 19, 1984.

The international agreement stipulates the sovereign and administrative arrangement of Hong Kong after July 1,1997. It states that although Hong Kong "will be directly under the authority of" China, it "will enjoy a high degree of autonomy, except in foreign and defense affairs."

It also states 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.

Finally, the agreement declares that the government of Hong Kong "is responsible for the maintenance of public order" and China's military forces stationed in Hong Kong "for the purpose of defense shall not interfere in the internal affairs" of Hong Kong. Beijing has clearly broken this agreement.

During the Umbrella Movement in 2014, Beijing for the first time stated that it considered the joint declaration to be "void." Naturally, the British Foreign Office immediately rejected the idea because "the document was a legally binding agreement that must be honored."

As I have previously noted, this was China's second miscalculation. The first, of course, was its construction of artificial islands in the South China Sea, which are considered to be "rocks" or "sea beds" under the Convention on the Law of the Sea, not islands.

In baseball, it's three strikes, you're out. The South China Sea action was China's first strike. Beijing may claim that it constituted a walk to first, but it was indeed a strike since the Permanent Court of Arbitration ruled that China has no historical rights over the area.

If Beijing really imposes security laws on Hong Kong and its actions are strongly condemned by the international community, it will be China's second strike. Beijing may claim victory after cracking down on demonstrators by deploying its armed police forces from the mainland, but it cannot completely silence the voices for democracy.

If this happens, what should Tokyo do? Washington denounced Beijing and threatened to strip Hong Kong's special status. The European response echoed this. Tokyo just stated recently that it was "deeply concerned about the situation in Hong Kong" but took no concrete measures to urge China to reconsider its decision.

If the international community acquiesces China's actions now, Beijing could be further emboldened to go after Taiwan, Scarborough Shoal or the Senkakus. Any of them could constitute a third strike for China. Or its actions could be acquiesced, constituting a "walk" that allows it to win the regional ball game.