It has been a few months since the Western media reported extensively on the democracy protests in Hong Kong. These protests did not fall from the blue sky, but also originate from the special liberal political position and democratic culture and the rule of law that the British allowed in the late period, even if the crown colony Hong Kong was the result of the imperialist and China humiliating Opium War and its unequal treaties and even among the British there was no real democracy, especially since the governor was installed by the British. But even after its return in 1997, Hong Kong was, alongside the USA, the center of the Chinese exile opposition, the Falungong held demonstrations, trade union activist Han Dongfang published his Labor Bulletin and there were annual large-scale demonstrations to commemorate the Tiananmen Square massacre in 1989, as well KP-critical literature was published, which also found its readers in mainland China. The umbrella movement also took place in the run-up to the 2019 democracy protests. But under Xi Jinping, the collective one-party dictatorship of the CCP was transformed into a one-man dictatorship for life with a social bonus system and Xi-Jinping thoughts in the CP and state constitution, and it was to be expected that this new totalitarian trend would also affect Hong Kong.
In addition to political demands for freedom, the democracy movement also fed itself from economic, cultural and social sources: decline in economic growth, horrific rental and real estate prices, housing shortages, increasing income differences, the influx of mainland Chinese, fears of economic, political and cultural foreign infiltration, local Hong Kong patriotism, up to marginal extreme demands for Hong Kong’s independence and was in part also a kind of youth protest in terms of generations, which also joined forces with youth protest movements in Thailand and Taiwan in the form of the Milktea Alliance on social media beyond Hong Kong.. In this environment, massive demonstrations to date took place in 2019 and early 2020. It was remarkable how hundreds of thousands of Hong Kong citizens took part in the protests and took to the streets for weeks. David against Goliath, also with an extremely young group that developed very creative and flexible forms of resistance. Nevertheless, most of them had a suspicion that given the clear imbalance of power, the protest movement hardly had a real chance. Especially since it was initially about a Hong Kong security law that Carrie Lam then withdrew, which the movement did not see as its success, which the demonstrators could use to withdraw without losing face and hold a strategy discussion, but the movement expanded its catalog of demands, which suddenly also included the demand for democratic elections in Hong Kong. Just as the CCP tried to undermine the 1 country, 2 systems principle, this principle has now also been questioned by the democratic side, although it was of course to be expected that the CCP would not leave this unanswered.
In addition, the most prominent face of the movement, Joshua Wong, then traveled undisturbed around the world and at a press conference hosted by Springer-BILD in Berlin loudly demanded that Hong Kong, like Berlin during the Cold War, should be turned into a new front-line city in a New Cold War. Especially since large posters appeared at the demonstrations depicting Trump marching with tanks in the direction of Beijing and also calling for US interference, which some mainland Chinese must have seen as an invitation to a modern opium war. In addition, the protests became increasingly violent, which is why some warners said the movement was in danger of losing its good image, while the CCP spoke of terrorism and sneered at the civil war-like riots of the Black Live Matters movement that later took place, that the USA would now experience their own Hong Kong, deploy the National Guard and the military, but at least Trump did not claim that BLM was initiated by China, but by the terrorist Antifa, the socialist and communist Democrats and their “transition candidate” “Beijing-Biden”. While some expected a new massacre like Tiananmen Square and others hoped that “the spark” would jump to China, both cases did not occur. The sudden outbreak of the Covid crisis took the wind out of the sails of the protest movement and then the CCP passed the new National Security Law and is now starting a wave of arrests.
The USA, the old colonial power GB and Australia responded with the open premature break of the 1 country, 2 system- principle with sanctions and wanted to abolish Hong Kong’s special status, which is why the CPC saw the protest movement as controlled by abroad, which should only serve to prevent the integration of the financial metropolis of Hong Kong into the Greater Bay Area and China and be a pretext to escalate the Sino-American conflict.. Joshua Wong has now been brought to trial and sentenced to 13.5 months in prison, which is still quite moderate in view of his exposed role and radical demands. Joshua Wong was also not brought and extradicted to China, sentenced there and, like Wei Jingsheng, sentenced to 18 years for his essay “The Fifth Modernization”, or to 11 years, like the later Nobel Peace Prize laureate and author of the 2008 Charter, Liu Xiaobo, nor to a Chinese concentration camp like 1 million Non-Han Chinese Uyghurs put in brutal detention conditions, which the China Cables made public, but he was brought to court in Hong Kong and imprisoned with a moderate sentence in a Hong Kong prison, from which he can write letters and reports of being detained in isolation with 24 hours of light and 15 minutes of walking in the courtyard, insofar as he has written them himself.
The moderate verdict against Joshua Wong can probably be explained by the fact that China currently does not want to provide any further pretext for a further escalation of the confrontation with the USA, especially in the transition phase of the US presidency to Biden and the hoped-for investment protection agreement with Germany and the EU. , but was tried in Hong Kong and imprisoned in a Hong Kong prison with a moderate sentence and he can write letters and reports of being detained in isolation with 24 hours of light and 15 minutes of walking in the yard, insofar as he has written them himself. The CCP also took into account Putin’s experiences with the show trial of the juvenile female punk band Pussy Riots, which, to Putin’s astonishment, provoked massive reactions and sanctions of the West. To condemn young greenhorns and hotheads to draconian punishments for youth sins in their juveline tempest is not well received and would make them martyrs. Especially since the CCP is the definitive winner in this dispute and wants to show itself to the world as a good winner, merciful, moderate and indulgent.
The West is still preoccupied with Covid for the time being and Joshua Wong’s case is no longer intensively reported in BILD and other media. Nevertheless, the Western reaction can also be seen as a litmus test for the German government’s new Indo-Pacific strategy, which is also supposed to become the blueprint for the EU in the future. It is interesting that the CCP’s new National Security Law is not just a national law that calls into question the 1 country, 2 systems principle, but is also a kind of international law that extends beyond the territory of China and Hong Kong works, so it also becomes a question of international law. Lea Deubner from the Süddeutsche Zeitung clarifies this fact in her comment “The judgment against Wong stands for the destruction of Hong Kong” on December 3rd 2020:
“The security law does not only mean the end of the economic metropolis, in which citizens and companies were once safe from the access and arbitrariness of the Chinese system, as previously only existed in mainland China. But the law is also a novelty that goes far beyond the Chinese penal code. It also allows actions outside the special administrative area to be prosecuted. People who are not resident in Hong Kong can also be punished. Maybe also people who never were there. So also journalists who write about the city outside of Hong Kong. Anyone who travels to Hong Kong in the future or to a country that has an extradition agreement with the Special Administrative Zone is at risk of arrest. It contradicts international practice, is an attack on the freedom of people worldwide.
And yet more states recently supported the security law as an internal affair of China in the general debate of the United Nations than criticized it. The liberal, democratic states have long been outnumbered in their dealings with Beijing, and China’s henchman policy is unfolding its power. The law stands once again for Beijing’s plan to establish its own rules of the game worldwide and weaken international law. In July, Federal President Frank-Walter Steinmeier called the security law a double breach of international law. People in Brussels were also dissatisfied. German Foreign Minister Heiko Maas even met with Wong before the law came into force. Disgusting little has happened since then. Wong’s imprisonment should not have any greater consequences than a few words of warning to Beijing.
Hardly anyone stands so for Hong Kong’s resistance to the autocratic party state – and for the belief that all people are entitled to basic rights. Regardless of the territory under which government they were born. Wong described China’s actions in Hong Kong as what it is: not a special case, but a symptom of the behavior of the Chinese party-state, as it is showing in more and more places around the world. But while Wong is starting his prison sentence and China is breaking the international agreement that it once signed when the former British crown colony was handed over, the Sino-British Joint Declaration, before the eyes of the world, the EU is working on the conclusion of a new agreement under the German Council Presidency China.
Soon the “Investment Agreement” could be signed. An economic agreement that failed for seven years due to Chinese resistance. Beijing’s immoral offer Now the political will is there on both sides, said Chancellor Angela Merkel recently. She said: China’s will. Beijing’s recent efforts are less a sign of good partnership than China’s realization that the election of new US President Joe Biden could be followed by more uncomfortable times. The agreement is an offer to the EU to place trade and business above values and democratic alliances. ”
On the one hand, there is the question of whether the British-Chinese declaration is really a treaty under international law or not just a declaration, and that this declaration is deposited with the UN is not yet a criterion for an international treaty, because there are also other documents which have been deposited which are no teaties. So the question remains of whether China recognizes the joint declaration with its annexes as a treaty under international law or whether this is more the Western or British interpretation of the declaration. Nevertheless, beyond such sophistic considerations, it remains to be asked what such declarations would be worth other than as non-binding goodwill declarations. At least it is clear that the National Security Act tries to unilaterally shift the 1 country, 2 systems principle in favor of the People’s Republic of China and before the agreed date of 35 years.
In The Diplomat Dr. Simon Shen on September 8th 2020 already outlined the possible judicial options fort he USA and the West how to react tot he new National Security Law:
„The Challenges of Bringing the Case to the International Court of Justice
In an article in Foreign Affairs, former U.S. Consul General to Hong Kong Kurt Tong disagrees with Washington’s decision to rescind the U.S.-Hong Kong Policy Act. He believes this would only hurt the people of Hong Kong and damage U.S. foreign policy interests without punishing China. Instead, he suggests taking the matter to the ICJ over China’s violation of the Sino-British Joint Declaration. Though China would likely ignore the court’s rulings, Tong suggests that the case itself would be an embarrassing blow to the administration. The suggestion, however, faces several challenges.
would need to provide proof to the ICJ that Beijing’s violations have directly caused systemic damage to the U.S., given that Washington is not a signatory of the Sino-British Joint Declaration. Even if the ICJ were to accept the case, the countries involved would also need to agree to binding arbitration by an international court to start the case, which Beijing is unlikely to agree to. Alternatively, in lieu of adversarial hearings, the ICJ can give advisory opinions upon request by specific U.N. agencies, such as the case of the sovereignty disputes over the Chagos Islands. However, given China’s present-day influence over member states in the U.N. General Assembly, China might not even be worried should the Hong Kong case be taken up in the General Assembly.
What About the Permanent Court of Arbitration?
The remaining option is to involve the Permanent Court of Arbitration (PCA), an organization outside the U.N. framework that accepts unilateral submission of disputes (this must be technically set up as a third party seeking legal advice or by connections to a treaty). The PCA is not a conventional court with legally binding power, but it seeks to resolve international disputes through arbitration. Interestingly, China has previously been involved with the PCA over territorial disputes in the South China Sea, a case which it lost to the Philippines (technically, the Philippines first brought the case to the U.N. Convention on the Law of the Sea, which in turn passed it to the PCA). China was uncooperative throughout the process, refusing to participate in the hearings and calling the verdict “a farce.” Thus, history has shown that this strategy may not directly impact China’s actions.
However, a PCA ruling may still have other knock-on effects, especially if the United States becomes involved. Although the U.S. is not a signatory to the Sino-British Joint Declaration, it may wield its international influence and set an example for other countries by revoking Hong Kong’s special status (a process Washington has already started) or imposing relevant sanctions.
On the other hand, Britain and other European countries have long resisted sanctions against China for several reasons: First, sanctions against China or Russia have not been effective historically; second, Europe’s own interests depend highly on the Chinese market; third, Europe hoped to distance itself from the unilateralist policies of the Trump administration. Nonetheless, European countries may still have significant influence in Hong Kong’s affairs by recourse to international law.
Britain, for one, has responded to the national security law with strong condemnation of China and an offer of immigration opportunities for many Hong Kongers. This represents a drastic change of tone from London’s previously passive stance and is a result of the far-reaching and grave consequences of the security law. Should Britain choose to further escalate its actions, as a co-signatory of the declaration, it may take the dispute to one of the international courts as a final measure.
Meanwhile, the EU has also spoken out against China’s treatment of Hong Kong. The European Parliament has passed a resolution that recommends the EU conduct an Arria-formula meeting at the UN Security Council. The resolution also calls for a U.N. special envoy to monitor Hong Kong’s situation, and to consider putting China before the ICJ for violating not only the Sino-British Joint Declaration but also the International Covenant on Civil and Political Rights. Despite the European Parliament’s support of legal action, it has limited implementation power, thus the real challenge lies in mobilizing concrete actions from member states of the EU.
Even if the ICJ or PCA Rules Against China, Would It Matter?
Hypothetically, let’s assume an international court (whether the PCA or ICJ) does take up the case, and rules against China. What then?
First, since the Sino-British Joint Declaration relies solely on Chinese cooperation and lacks any other monitoring mechanisms, even if an international court determines that the agreement has been violated, China is unlikely to concede. Britain has few options other than demanding reparations; in response China would predictably “strongly condemn” and reject any such requests. However, this scenario would drastically undermine China’s international image and provide a justification for other countries to re-evaluate their own agreements with China.
Second, the PCA, unlike the ICJ, also accepts requests from organizations and private parties for dispute resolution. This gives an opportunity for a third party or country (other than the Chinese or the British) to bring this case to the PCA. Should the PCA rule against China, it would put pressure on Britain to take action, despite previous British reluctance to provoke an important trade partner. This may also set a precedent for other parties such as civil groups to submit their own cases to the PCA regarding Chinese influence in Hong Kong.
Third, although PCA decisions are not legally binding, they may influence the international law framework as legal references. For example, in the Philippines v. China dispute, the PCA verdict made clear recommendations on what constitutes an “island” and what constitutes a “rock” (which confers far more limited maritime rights). As a result, the Taiwanese-held Itu Aba Island in the South China Sea is re-defined as a “rock,” challenging Taiwan’s territorial claim in the fiercely contested waters. By the same logic, the PCA can also make recommendations on how to “remedy” the situation after the Sino-British Joint Declaration is invalidated, leading to stronger justification for potential international legal and political actions.”
Besides that, till now the investment protection agreement failed not only because of China’s unwillingness. but also because the EU and Germany themselves were afraid of the Chinese gorilla economy and the unfair conditions, as well as increased dependence on the PRC. In this respect, the conclusion or non-conclusion of an investment protection agreement will show to what extent the new Indo-Pacific strategy and its diversification of dependencies in Asia are meant seriously. Especially since after the conclusion of the Sino-Asian Free Trade Agreement Regional Comprehensive Economic Partnership (RCEP) it would be another setback for the USA, if the Germans and Europeans no longer wait for the USA and its TTIP or TPP, insofar as these were Biden´s new projects or then, in turn, would be sacked under another US government.