Where is Hong Kong International Law?

Guest post by Sean O’Reilly

Hong Kong has been a frequent news item in the international media recently. Its prolonged civil unrest brought about by proposed changes to its extradition law has become a global talking point. One subject absent from the conversation, however, is international law. To international lawyers in Hong Kong this is comes as little surprise. Within Hong Kong, legal doctrine outside of the realm of the commercial is often confined to the ivory basement of the academy. Outside Hong Kong, that the city can be considered in relation to international law receives little attention, although this is changing.

But, Hong Kong’s obscurity within international law is somewhat unwarranted given how central international law was and is to both its existence and success. In fact, visiting or living in Hong Kong one appreciates just how much of it is entwined with the international. Whether that be elbowing through its crowded markets, strolling through its historical sites, or watching hulking container ships glide slowly into port; Hong Kong’s local spaces are infused with global life. As one would imagine, this makes it a rich (yet underexplored) venue for legal sightseeing. This guest post offers a sample of some legal sights in Hong Kong from its past, present, and future as well as an open invitation from the city to prospective legal sightseers.

Hong Kong’s Past

Hong Kong’s creation was intimately connected to international law. Its birth was one of diplomatic encounter and colonial conquest cemented by treaty. Where British colonialism went, international law tended to follow. Contact with foreigners had always been a part of Chinese diplomacy, but international relations based on sovereign equality as we now know it was unheard of. International relations with China had, since time immemorial, consisted of trade and paying tribute to the Celestial Court. It is no wonder, therefore, that coming into contact with armed proponents of the Westphalian model lead to conflict.  

Diplomacy, when the Chinese and the Europeans were in the mood to attempt it, proved unworkable. Through strongarm tactics and the use of force the European powers browbeat the Qing Empire into submission, extracting substantial concessions as a result. One such British territorial concession was a barren island off China’s southern coast. Thus, the colony of ‘Hongkong’ was created by the Treaty of Nanking in 1842, later extended by the First Treaty of Peking in 1860. Finally, the Second Treaty of Peking in 1898 leased the New Territories for 99 years. Technically only the New Territories was subject to this international lease but, close to the end of British rule, it was clear that the Chinese would accept nothing less than the full return of Hong Kong. In China, these treaties go by a different name, the ‘unequal treaties’ (bu ping deng tiao yue, 不平等條約) and have long had a place in modern Chinese thought on diplomacy and international law.

The most visible remnant of the unequal treaties are Hong Kong’s borders themselves. Its borders (or ‘boundaries’) with China are almost identical to those under the 1898 Treaty. Now, ‘invisible’ traces of previous treaties still remain, for example, the old border between Kowloon and China which is now where the district of Kowloon meets the New Territories. This former international border lives on as the aptly named ‘Boundary Street’ (gaai han gaai, 界限街) which, unsurprisingly, traces the border drawn by the 1860 treaty from Tsuen Wan in the west to the former site of the Kowloon Walled City in the east.  

The ‘Kowloon Walled City’ (gau lung sing jaai, 九龍城寨), before its demolition in 1994, was a haven for the ‘three vices’ (wong duk do, 黃毒賭) drugs, gambling, and prostitution. A familiar character in Hong Kong movies this lawless zone of autarkic life now exists only in the memories of its former inhabitants and as a distant cultural touchstone for Hongkongers above a certain age.  Yet, it too had its origins in international law, beginning as a Song Dynasty military fort. When the 1898 treaty was signed, the Kowloon Walled City was excluded, provided the Chinese did not interfere in the defence of Hong Kong. Left alone, in its early years, it was able to eke out an existence as a minute Chinese enclave in British Hong Kong before eventually being abandoned. The 1898 treaty however, was never actually amended to reflect this, and in the administrative vacuum that followed, generations of immigrants, outlaws and vagabonds slowly shaped the aging fort into the dense miniature city it’s now remembered as. Finally, as Hong Kong’s return neared the Chinese and British governments agreed in 1987 that it be demolished. It has been replaced by a tasteful public park designed in the Qing style, with traces of international law hinted at on signboards for the curious tourist  

Hong Kong’s Present

Legal sightseeing in Hong Kong is not limited to its colonial past. Hong Kong is currently a Special Administrative Region of China – a political subdivision created to ease its return to the Mainland. This framework was created by the Sino-British Joint Declaration in 1984 that sets out how Hong Kong is to be run and promises that its way of life would be preserved for 50 years; now codified in Hong Kong’s mini-constitution, the ‘Basic Law’ (gei boon faat, 基本法). The Declaration was deposited with the UN treaty depository and has all the hallmarks of an international agreement between two sovereigns. Its status as a treaty implies that Britain and China are bound by international law to follow it and thus interferences with Hong Kong’s way of life would be breaches of an international agreement. This view, however, is not shared by all.

Regardless of the Declaration’s status as a treaty, the effects of its brainchild, ‘One Country Two Systems’ (yi guo liang zhi, 一國兩制), are felt everywhere. Again, back to Hong Kong’s borders. At a glance they seem more like international borders than domestic ones with customs checks and tight monitoring of people and goods. The character of these borders underscores a curious feature of One Country Two Systems, that is, in some senses Hong Kong appears to enjoy a limited form of sovereignty (or ‘sub-sovereignty’) not unlike a State (borders or, ‘defined territory’, being one of the key elements of statehood under international law). Yet, on the other hand, Hong Kong’s ‘sovereignty’ is often severely constrained. Its borders are finding themselves increasingly malleable, blurring the line between where one system ends and another begins.

Nowhere exemplifies this better than the new West Kowloon Railway Station whose modern façade and spacious interior make it a stunning addition to the unexceptional concrete expanse that is West Kowloon, with one quirk. Once a traveller passes through customs Hong Kong law ceases to apply. Instead, Chinese law is what governs the inner portion of the station, despite it being on Hong Kong territory where the Basic Law applies. Besides bringing more efficient transport links with China, the station brought Hong Kong its first taste of extraterritoriality. No stranger to international law but certainly an oddity in this city. Whether granting Chinese authorities jurisdiction over the station was constitutional is still being debated .

Hong Kong’s Future

Hong Kong’s future is uncertain. Some argue it is nothing short of dystopic. What has been ignored is that its contested future must be a question of international law. While the Joint Declaration and Basic Law are still extant, and human rights still enforceable, this must be the avenue through which Hong Kong undertakes a search for its future. Indeed, it is Hong Kong’s future, and the spectre of its arrival (along with many other factors) that have spurred on its recent protest movement. But is the movement fighting for Hong Kong’s future or against it? And is the future that it is moving to one that has international law’s role in Hong Kong strengthened or weakened?

How then do we view the protests in light of all this? One striking feature about them, especially from a local perspective, is how quickly and deeply they have become internationalised, slogans painted in multiple languages, foreign news crews and appeals to international bodies are just the tip of the iceberg. Hong Kong now protests in the shadow of Great Powers and, in some respect, has been subsumed into ongoing conflicts about the international order. The United States plans to make Hong Kong’s separate trade status contingent on its autonomy and human rights protection. China, as a response to Trump’s trade war is watching developments very closely. Is every battle then, one for autonomy, human rights, freedom, democracy, or something else? Can international law help us figure out what? What is becoming clearer is that, previously, international law in Hong Kong operated below the surface, with the Joint Declaration and Basic Law underpinning daily life without much visibility. Perhaps that is why legal sightseeing in Hong Kong has yet to take off. But this is now changing as Hong Kong’s ‘expiration date’ is nearing and the international foundations upon which it was built are revealing their contingency.

So where is Hong Kong international law? It is everywhere, but we are still looking for it. Next time you stop by make sure to get your camera ready, you may be surprised at what you find.

Sean O’Reilly was born and raised in Hong Kong and is an aspiring barrister and a Postgraduate Certificate in Laws candidate at the Chinese University of Hong Kong. He holds an LLB from the Chinese University of Hong Kong and an LLM in Public International Law from the London School of Economics. When he is not writing about international law or Hong Kong (or both) he can be found wandering the streets with his camera.

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