4 FCO monitoring of the Joint Declaration
The
UK's ongoing obligations under the Joint Declaration
31. The Sino-British Joint Declaration is an international
treaty, registered in 1985 with the United Nations. When it was
signed, both the UK and China undertook to implement its provisions.
The UK's specific obligation was to administer Hong Kong until
the handover "with the object of maintaining and preserving
its economic prosperity and social stability."[61]
According to the FCO, this obligation was fulfilled when sovereignty
over Hong Kong was transferred from Britain to China.[62]
The majority of the treaty focuses on China's policies toward
Hong Kong SAR, which may not be changed for 50 years following
the handover of sovereignty. The FCO's position is that the UK
retains a locus standi in ensuring that China, as a counter-signatory,
continues to fulfil its obligation to maintain Hong Kong's "high
degree of autonomy".[63]
Thus although the Declaration did not confer any specific legal
obligations on the UK toward Hong Kong after 1 July 1997, the
FCO has consistently held that the UK has a "moral responsibility
and a legal right" to monitor the ongoing implementation
of the treaty.[64]
32. We were therefore concerned to hear comments
made in December 2014 by Raymond Tam, Hong Kong's Secretary for
Mainland and Constitutional Affairs, in response to a question
in LegCo on the Joint Declaration. He said:
The provisions of the Joint Declaration have
been fully implemented, and its purpose and objectives have also
been fully fulfilled. […] The United Kingdom has no sovereignty,
jurisdiction or right of supervision over Hong Kong, and there
is no such thing as "moral obligation".[65]
33. We put these comments to the FCO Minister of
State, Hugo Swire, and were reassured to hear that the UK Government
did not agree with them.[66]
We note that Mr Swire raised this issue with the Chinese Foreign
Minister and with the head of the Hong Kong and Macao Affairs
Office in May 2014. In his foreword to the six-monthly report
on Hong Kong covering July to December 2014, the Foreign Secretary
wrote:
Let me be unequivocal, as we have been, consistently,
at all levels of Government: the Joint Declaration remains as
valid today as when it was signed in good faith by Margaret Thatcher
and Zhao Ziyang, and the UK's commitment to it is as strong as
ever. It is a legally binding treaty, registered with the UN and
as a co-signatory, we have a clear right to monitor and comment
on its implementation, and we will continue to do so.[67]
34. The FCO has repeatedly said that the UK has
both a moral responsibility and a legal right to monitor China's
fulfilment of its obligations to Hong Kong under the Joint Declaration.
We agree. The FCO should continue making this clear to the Chinese
and Hong Kong authorities at every level. The Minister of State
told us that President Xi will conduct a state visit to the UK
in 2015. The Prime Minister should use that opportunity to emphasise
both publicly and privately to President Xi that the UK is committed
to this position, and takes seriously its monitoring of the implementation
of the Joint Declaration.
The six-monthly reports
35. Since the handover of sovereignty in 1997, the
FCO has monitored the implementation of the Joint Declaration
primarily via its six-monthly reports on Hong Kong. In a Westminster
Hall debate on 22 October 2014, the Minister of State said that
the six-monthly reports are widely read by decision-makers in
Hong Kong and Beijing.[68]
The evidence we received supports this contention. Many of the
witnesses to whom we spoke in Hong Kong, as well as a large number
of the written submissions, showed detailed knowledge of the content
and tone of the reports. The President of the Foreign Correspondents
Club in Hong Kong also told us that UK statements on Hong Kong
were widely reported there. He said:
What I can say is that any time the UK Government
issues any kind of language on Hong Kong, it gets reported everywhere—in
all the print and broadcast media. People here are listening and
looking for cues from London to see what the view is, and that
gets reported extensively—and it will get spun extensively,
depending on the media group involved and what their position
is on these issues of pro-China, pro-democracy or whatever the
rival camps are. Fundamentally, you are guaranteed a wider audience.[69]
The impact that the UK's statements can have in Hong
Kong has also been made apparent to us by the extensive coverage
of our inquiry in the Hong Kong media. It is therefore of utmost
importance for the FCO to get the six-monthly reports right.
36. According to the FCO, the purpose of the reports
is "to keep Parliament informed of major developments in
Hong Kong, in particular regarding the implementation of the Sino-British
Joint Declaration and the operation of the 'one country, two systems'
model."[70] They
told us that the reports aim to provide a "narrative"
of developments during the reporting period, and to establish
the UK position on any significant issues of interest or concern.[71]
The reports are drafted by FCO officials in the Consulate-General
in Hong Kong and revised together with the China Department in
London.[72] The Foreign
Secretary then writes a short foreword, typically no longer than
two pages, before presenting the report to Parliament.
37. The six-monthly reports have never identified
a breach of the Joint Declaration. The reports have consistently
concluded that "one country, two systems" continues
to work well, although the most recent report acknowledged that
it had been "put to perhaps the most serious test since the
handover" during the period from July to December 2014.[73]
The reports typically cover topics including the independence
of the judiciary, the rule of law, basic rights and freedoms such
as freedom of the press and of assembly. They also detail political,
economic and constitutional developments during the reporting
period. The reports have been used to express concern about various
issues and developments, most strongly in 2002 and 2003 in relation
to proposed national security legislation under Article 23 of
the Basic Law, which, if passed, could have significantly restricted
freedom of speech and the press.[74]
The Foreign Secretary's foreword is intended to provide "the
main political opinion" expressed in the report.[75]
The foreword, however, is often identical in content and phrasing
to the conclusions stated throughout the main body of the report,
and usually offers little extra insight into the UK Government's
position.
38. On the whole, the assessment of our witnesses
was that the reports could do better, particularly in relation
to establishing the UK position on events of interest or concern.
This was not a unanimous view—the Hong Kong Association
called the reports a "useful compendium of developments"[76]—but
a significant majority of the evidence we received ranged from
mildly to strongly critical. Some witnesses, particularly academics
and analysts, thought that the reports were broadly accurate in
their description of events in Hong Kong, but that they lacked
analysis and opinion. Duncan Innes-Ker, an analyst at the Economist
Intelligence Unit, said he thought the six-monthly reports gave
"broad" and "deep" coverage, but that they
did not always reflect accurately "a full sense of the feelings
on the ground."[77]
He described the reports as "a repetition of fact, rather
than an expression of opinion."[78]
Similarly, Dr Malte Kaeding, Lecturer in International Politics
at the University of Surrey and an expert on Hong Kong, said the
reports provided a good overview of events, but lacked context
and did not make linkages between the individual issues and events
described in the narrative.[79]
Atypically among the interlocutors in Hong Kong to whom we spoke
via video-link, the Chairman of the Hong Kong Democratic Foundation
expressed admiration for the depth of China-related knowledge
displayed by FCO officials working on the reports, even though
he did not always agree with their view. He said:
We know—we have links with your consulate
general in Hong Kong—almost everyone who wrote the six-monthly
report and we know that both former and current officials working
in the Foreign and Commonwealth Office are sinologists. They have
deep knowledge of China [...] Because of their deep knowledge,
of course their judgment could be slightly different from Hong
Kong and from people who are not sinologists […] I know that
they have Hong Kong's best interests at heart. There are people
who have a different opinion—that is normal in a democratic
society—but personally, I trust their judgment, because
they can tell me things I don't know. The Foreign Affairs Committee
might blame them or say, "They are not doing their job,"
but in our opinion they are doing the best they can to preserve
not just you but us, and they are trying to best serve China's
interests too.[80]
This was, however, an unusually sympathetic evaluation
of both the content of the six-monthly reports and of the FCO's
judgment in responding to developments in Hong Kong.
39. A large proportion of those to whom we spoke
had more negative views on the reports, criticising them for failing
to convey an accurate sense of public opinion in Hong Kong, and
also for their neutral tone. Asked for his opinion on the reports,
former Governor of Hong Kong Lord Patten said:
Well, words like "bland" and "anodyne"
come to mind, but they probably overdo the excitement and aggressiveness
of the reports. On the day that the sans-culottes stormed the
Bastille, Louis XVI wrote in his diary, "Rien",[81]
and you get a slight feeling of that when you read these six-monthly
reports, which must have been written thousands of miles away
from Hong Kong.[82]
The "pan-democrat" legislators to whom
we spoke were highly critical of the reports, saying that they
failed to convey the extent to which people in Hong Kong are worried
about the perceived erosion of Hong Kong's autonomy. Emily Lau,
leader of the Democratic Party, said that the reports were "very
weak" and "not really stating things as they are".[83]
Alan Leong, leader of the Civic Party, told us that the six-monthly
reports "should reflect more accurately on what happened
during the past six months and give a clearer and unequivocal
view of what you had observed, instead of dodging the issue and
beating about the bush."[84]
Democratic activist Avery Ng called the reports "weak"
and disappointing.[85]
Student protesters added a slightly different perspective, saying
the reports were inaccurate because they described only the opinions
of legislators and ignored the views of young people without political
affiliation.[86] Anson
Chan's Hong Kong 2020 organisation also accused the reports of
"over reliance on bland rehearsal of public pronouncements
by Hong Kong and Chinese Government officials" and of failing
to include authoritative public opinion surveys.[87]
40. Dr Tim Summers, an analyst with Chatham House
and former FCO official, also said that the reports did not always
express the UK position clearly enough on issues relating to the
Joint Declaration.[88]
Unlike the many pro-democratic witnesses who accused the FCO of
taking a timid approach in order to avoid angering Beijing, Dr
Summers suggested that the relative blandness of the reports reflected
the FCO's desire to avoid angering Hong Kong's pro-democratic
activists. Speaking about a controversial White Paper published
in June 2014 by the Chinese State Council, which in his judgement
contains no cause for concern, he said:
The six-monthly report for the first half of
[2014] really sat on the fence on the White Paper and I don't
think they needed to sit on the fence on that. The Government
could and should have come to a view […] I guess the politics
are the issue, and the concern not to speak out in a way that
might be criticised by pro-democracy protestors, hence the fence-sitting.[89]
41. According to the FCO, the purpose of the six-monthly
reports is twofold: to provide a narrative of events, and to serve
as the main platform for the UK Government to express its views
on developments in Hong Kong. People in Hong Kong, China and elsewhere
look to the reports to ascertain the UK Government's position
on important and controversial issues. The reports thus speak
to several different audiences at once and we acknowledge that
they must tread a narrow path. However, we consider the reports
unsatisfying, even within these constraints.
42. We consider that the six-monthly reports offer
comprehensive if somewhat bland narratives of events, but they
fall some way short of indicating the UK's position on developments
in Hong Kong. We recommend that the reports be restructured to
include less ambiguous conclusions, supported by more in-depth
analysis of the political, social and economic implications of
the events they describe. We also recommend that the Foreign Secretary
express more clearly the UK's views on developments during the
relevant reporting period, in his foreword to each report.
61 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong,
para 4 Back
62
Q334 Back
63
Q334 Back
64
Q333 Back
65
Hong Kong Government News, "LCQ5: The Joint Declaration on
the Question of Hong Kong", Press Release, 17 December 2014 Back
66
Qq335-337 Back
67
Foreign and Commonwealth Office, The Six-monthly Report on Hong Kong: 1 July to 31 December 2014,
February 2015, p 2 Back
68
HC Deb, 22 October 2014, col 294WH Back
69
Q154 Back
70
Foreign and Commonwealth Office (HNG 0748) para 8 Back
71
Foreign and Commonwealth Office (HNG 0748) para 9 Back
72
Q346 Back
73
Foreign and Commonwealth Office, The Six-monthly Report on Hong Kong: 1 July to 31 December 2014,
February 2015, p 28 Back
74
The legislation was withdrawn in 2003 after mass protests, and
has not been re-introduced to date. Back
75
Q347 Back
76
Hong Kong Association (HNG 0738) para 4 Back
77
Q258 Back
78
Q259 Back
79
Q29 Back
80
Q167 Back
81
Meaning "nothing", in French Back
82
Q11 Back
83
Q209 Back
84
Q219 Back
85
Q240 Back
86
Q123 Back
87
Hong Kong 2020 (HNG 0490) para 1.1 Back
88
Q236 Back
89
Q237 Back
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