Paradiplomacy and its Constraints in a Quasi-Federal System – A Case Study of Hong Kong SAR and its Implications to Chinese Foreign Policy
Wai-shun Wilson CHAN ([email protected])
Introduction
Thank for the Umbrella Movement in 2014, Hong Kong has once again become the focal point of international media. Apart from focusing the tensions among the government, the pro-Beijing camp and the protestors about the pathway and the pace for local democratization, some media reports have linked the movement with the Tiananmen Incident, and serves as a testing case whether “One Country, Two Systems” could be uphold under the new Chinese leadership.1 While most of the academics in Hong Kong tend to evaluate the proposition from changes in domestic politics and the freedom and rights enjoyed by the society, little evaluation is conducted from the perspective of the autonomy enjoyed by Hong Kong in international arena. In fact, both the Sino-British Joint Declaration and the subsequent Basic Law have defined the scope of Hong Kong’s autonomy in conducting external relations ‘with states, regions and relevant international organizations’. It is therefore tempted to suggest that the external autonomy enjoyed by Hong Kong SAR Government serves as the other pillar of “One Country, Two Systems”, giving an unique identity of Hong Kong in global politics which may be different from that possessed by mainland China.
Though officially “One Country, Two Systems” practiced in Hong Kong (and Macao) is not recognized by Beijing as a federal arrangement between the Central People’s Government and Hong Kong SAR Government, the internal and external autonomy stipulated in the Basic Law gives Hong Kong similar, to some extent even more, power as a typical federated unit. By reviewing the institutional framework of “One Country, Two Systems” and matching it with the actual practices of the external relations of Hong Kong, this paper aims to reveal the tensions of such quasi-federal arrangement between mainland China and Hong Kong. The paper suggests that the incompatibility of Chinese realist agenda and Hong Kong liberal identity limits the potential of Hong Kong in contributing the rise of China and her internationalization.
The remaining of the paper will be structured in three parts. It will first review the academic literature in understanding the role of Hong Kong in Chinese foreign policy, and the related institutional arrangement on Hong Kong external relations. Followed by that, the paper, through reviewing three cases, will discuss how Hong Kong independent international status is constrained by Chinese foreign policy. Such constraints will be addressed again in the concluding section, with the especial focus on how these potentials and constraints are related to the changing perception of Beijing about the international order and the international identity of Hong Kong.
Quasi-federalism/Devolution-Max in Chinese Characteristics: The Institutional Characteristics of the Status of Hong Kong
1 [1] ‘Hong Kong Protests: Echoes of Tiananmenm’ BBC News, 2 October 2014. [2] Gideon Rachman, ‘China’s Biggest Political Challegen since Tiananmen in 1989,’ Financial Times, 29 September 2014. [3] Samson Yuen, ‘Hong Kong After the Umbrella Movement: An Uncertain Future for “One Country, Two Systems”,’ China Perspectives, No. 2015/1 (2015), pp.49 – 53. [4] Joshua Keating, ‘Do the Protests in Hong Kong Mean the “One Country, Two Systems” System Is on the Ropes?,” Slate, 29 September 2014. The status and the autonomy enjoyed by Hong Kong as a Special Administrative Region under are always in dispute between the pro-democratic camp and the pro-establishment camp and, needless to mention, between local community and Beijing authority. On the other hand, the legal foundation of “One Country, Two Systems” has its domestic and international source which further complicates the status of Hong Kong in international politics. The “domestic” source of “One Country, Two Systems” could always refer to the Chinese constitution revised in 1982, followed by Deng’s announcement of the “One Country, Two Systems” initiative in 1978. According to Article 31, Beijing could ‘establish Special Administrative Region when necessary’ which to be ‘prescribed by law enacted by the National People’s Congress in the light of the specific conditions’2. In fact, devolving power to regional and local level of government is not new to Beijing. Since her first constitution the concept of ethnic minority autonomous regions was stipulated under Article 3 of the 1954 Constitution (Article 4 of the 1982 Constitution) which stated that ‘regional autonomy applies in areas where a minority nationality live in a compact community’ and ‘all national autonomous areas are inseparable parts of the People’s Republic of China’.3 Subsequently, five autonomous regions were established at Inner Mongolia (Mongols), Xinjiang (Uyghur), Guangxi (Zhuang), Ningxia (Hui) and Tibet (Tibetan). According to Haiting Zhuang, there are 155 ethnic autonomous areas among the regional, prefectural and county levels, which allow 44 ethnic minorities in China enjoy a certain degree of self-governing and autonomy.4 Nonetheless, the implementation of self-governing in Hong Kong is not based on ethnic equality, as most of the Hong Kong population are ethnically Han, but rather a strategic move for future unification between mainland China and Taiwan. Indeed, the innovation of ‘One Country, Two Systems’ suggested by Deng was targeted to Taiwan’s population and the Kuomingtang government in Taiwan.5 The subsequent implementation in Hong Kong and Macao is merely the showcase for Taiwan people, which was also an important mission for Hong Kong in contributing Chinese “foreign” policy.
Apart from the political and legal source of legitimacy, the status of Hong Kong is different from the rest of the autonomous regions is that the “One Country, Two Systems” in Hong Kong is endorsed, thus partially monitored, by the international community. As a former British Crown Colony, the transferral of sovereignty of Hong Kong requires the consent from both China and United Kingdom. The 1984 Sino-British Joint Declaration has laid down the fundamental principles in the future governance of Hong Kong after 1997.6 Such guaranteed features were later translated to various articles in the Basic Law (BL), the so-called “mini-
2 ‘Constitution of the People’s Republic of China (full text after amendment on March 14, 2004)’, Zhongguo Rendawang (www.npc.gov.cn), Accessed at http://www.npc.gov.cn/englishnpc/Constitution/node_2825.htm, on 3 May 2015. 3 ‘Constitution of the People’s Republic of China: adopted on September 20, 1954 by the First National People’s Congress of the People’s Republic of China, at its first session’ (Peking: Foreign Language Press, 1954), pp.9 – 10. Document assessed at http://www.hkpolitics.net/database/chicon/1954/1954ae.pdf, on 3 May 2015. 4 Haiting Zhang, ‘The Law on the Ethnic Minority Autonomous Regions in China: Legal Norms and Practices,’ Loyola University Chicago International Law Review. Vol. 9, Issue 2 (Spring/Summer 2012), pp.249 – 264. 5 Jeanette Ka-yee Yuen, ‘Commentary: The Myth of Greater China? Hong Kong as a Prototype of Taiwan for Unification,’ Taiwan in Comparative Perspective, Vol. 5(July 2014), pp.134 – 152. 6 ‘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.’ Accessed at http://www.cmab.gov.hk/en/issues/jd2.htm, on 1 May 2015. constitution” of Hong Kong. 7 Though Beijing and Hong Kong official suggest that the obligation of British government ends on 1 July 1997 thus Britain had no rights to intervene Hong Kong affairs8, the local and international community, to some extent, construe the Joint Declaration as bilateral agreement between Beijing and London registered under the international law framework, thus assuming certain moral obligations about the successful implementation of “One Country, Two Systems” in Hong Kong. 9 The current-ceased-to- function Hong Kong Policy Act initiated by the United States, the half-year reports prepared by the Foreign and Commonwealth Affairs Office to the UK Parliament, the annual reports prepared by the European External Action Service, together with occasional hearings from the U.S. Congress and European Parliament at special events like the Umbrella Movement last year, show the presence of international community in monitoring the implementation of “One Country, Two Systems”. Such “internationalization” of the status of Hong Kong indeed has huge impact on the potentials as well as constrains towards the paradiplomacy of Hong Kong, which will be revisited in later section of the paper.
Aiming to retain most of the characteristics of Hong Kong before the handover, the Basic Law has transferred the de facto international character of Hong Kong enjoyed in the colonial period into the de jure one. While Article 13 of the Basic Law has laid down the responsibility of Beijing in handling foreign affairs related to Hong Kong and the Ministry of Foreign Affairs will set up an office, i.e. the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region (FMCOPRC), for handling such matter, the article also ‘authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law’ (BL Article 13). Chapter VII of the Basic Law further stipulates the power and autonomy enjoyed by the HKSARG, its officials and its relations to external parties. The Basic Law framework allow Hong Kong to develop relations with other international entities, conclude international agreements and participate international organizations in appropriate field, under the name ‘Hong Kong, China’ (BL Article 151 and Article 152). Former agreements to which Beijing is not a party but being implemented in Hong Kong continue to be valid (BL Article 153). Hong Kong could issue its own passports, conclude visa abolition agreements with foreign states, apply immigration controls against persons from foreign states and regions and establish official and semi-official economic and trade offices overseas (BL Article 154, 155 and Article 156). On the other hand, Beijing reserves most of the power related to sovereign and diplomatic level, for instance government officials could only serve as the members of delegation of Beijing in attending diplomatic negotiation (BL Article 150 and 152). The application of international agreements that China is a party and the establishment of foreign consular and official and semi-official missions in Hong Kong all decide and approve by Beijing, although those formal ties between Hong Kong and rest of the world are maintained (BL Article 157).Though not being included in the Chapter VII, the international economic and financial characteristics of Hong Kong, such as the status of free
7 Unless other specified, the article in the Basic Law quoted in the article will be cited as (BL Article 13). The full text of the Basic Law could be assessed at http://www.basiclaw.gov.hk/en/basiclawtext/index.html. 8 [1] Grace Tsoi, ‘Does China Think the Sino-British Joint Declaration is Void?,’ Foreign Policy, 18 December 2014. [2] ‘Tanzhiyuan: Lianhe Shengmeng yi Wancheng Lishi Renwu (Raymond Tam: The historical mission of the Joint Declaration has been completed),’ Hong Kong Economic Journal, 17 December 2014. 9 Grace Tsoi, ‘Does China Think the Sino-British Joint Declaration is Void?,’ Foreign Policy, 18 December 2014. port (BL Article 114), a separable custom territory (BL Article 116), independent shipping and civil aviation policy (BL Article 124 to Article 135) – which is in crucial interest of foreign states and companies, are maintained through various articles in the Basic Law, thus establishing a rather independent legal entity of Hong Kong in international political economy.
The perceived characteristics of Basic Law as a “mini-constitution”, the rather distinctive international identity from China, and the autonomy in domestic politics compared to the rest of the autonomous regions, may make us come to the conclusion that Hong Kong is operated under a quasi-federal system like Zanzibar in Tanzania or the delegative system like Aland in Finland.10 The comparability of three entities may lie on the fact that all three entities fulfil the conceptual definition suggested by Stephen Wolff in analysing the scope of paradiplomacy.11 However, Beijing always insists that China is not practicing federal system as other countries like United States, nor the Basic Law has the constitutional feature that give balanced rights and obligations between Beijing and Hong Kong.12 The constitutional feature of Basic Law only applies in relation to other legislations in Hong Kong, making it the highest law of the land, but the source of power stipulated in the Basic Law is all entirely come from Beijing devolution.13 Key ideas like resumption of sovereignty and authorization of autonomy from Beijing have been spread within the text of the Basic Law.14 The Chinese constitution and the Basic Law provide enough empowerment for Beijing to potentially step into the legislations and decisions of Hong Kong. For instance, the Standing Committee of the National People’s Congress can annul ‘local regulations or decisions that contravene the constitution’ (Article 67, no. 8), the State Council could also alter ‘inappropriate decisions and orders issued by local organs of state administration at different levels’ (Article 89, no. 14).15 Under the Basic Law, the power of interpretation and amendment is vested in the hand of the Standing Committee of the National People’s Congress (BL Article 158 and 159), and no amendment could contravene the basic policies regarding Hong Kong (BL Article 159), and Beijing could intervene directly to Hong Kong under the state of emergency (BL Article 18), which is defined as ‘a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region’. Indeed, while amendment on the Basic Law from Hong Kong could only be tabled with the approval of two-third of the members of both the Legislative Council and the Hong Kong deputes to the National People’s Congress (BL Article 159), such “amendment", or sometimes it is being regarded as “re-interpretation”, initiated by Beijing could always be done unilaterally as we could observe from different controversial cases related to the constitutional reform and the right of abode. Though in term of interpretation of the Basic Law the National People’s Congress ‘shall consult its Committee for the Basic Law of Hong Kong Special Administrative Region’, membership
10 Simon Shen, ‘Hong Kong’s Sub-sovereignty Status and its External Relations,’ in Per Sevastik edited, Aspects of Sovereignty: Sino-Swedish Reflections (Leidan: Brill-Nijhoff, 2013), pp.101 – 120. 11 Stefan Wolff, ‘Paradiplomacy: Scope, Opportunities and Challenges,’ The Bologna Center Journal of International Affairs, Vol. 10 (Spring 2007), pp.141 – 150. Accessed at http://static1.1.sqspcdn.com/static/f/755758/10143474/1294597825457/BCJ- 2007edition.pdf?token=nPeGod4F%2BaMhC%2BPLZgRG0mb%2FWS4%3D, on 1 May 2015. 12 ‘Lian Xisheng: Fan Jibenfa Erdong Jieguo Jiushi Zainan (Lian Xisheng: Disaster is the only outcome for any anti-Basic Law action),’ Wenweipo, 20 May 2015. 13 [1] Ralf Horlemann, Hong Kong’s Transition to Chinese Rule: The Limits of Autonomy (London: Routledge, 2003), p.71. [2] ‘Lian Xisheng: Fan Jibenfa Erdong Jieguo Jiushi Zainan (Lian Xisheng: Disaster is the only outcome for any anti-Basic Law action),’ Wenweipo, 20 May 2015. 14 Ralf Horlemann (2003), p.72. 15 ‘Constitution of the People’s Republic of China (full text after amendment on March 14, 2004)’ appointment of this committee is also at the hand of Beijing even though it is explicitly required the members, in equal number, should come from both mainland and local community.16 Unlike the case in Zanzibar which its autonomy is protected by the constitution or the case of Aland which its international entity is protected by international law and the domestic autonomy is protected by the apolitical Supreme Court and the negotiation mechanism between Finland and Aland, the autonomy of Hong Kong ‘is in the hands of a quasi-omnipotent constitutional body, which is itself only a subsidiary and submissive instrument of power of the Chinese Communist Party and its leading bodies (the Central Committee and the Politburo).’ 17 As Ralf Holermann suggested, the lack of controlling mechanism like the British parliament during the colonial period of Hong Kong and the absence of culture and practices of constitutionalism in China make the autonomy of Hong Kong always rather arbitrary and decided by individual case, provided that such autonomy is beneficial to China’s fundamental interests.18
The Realist-Liberal Framework and the Role of Hong Kong in Chinese Foreign Policy
While in Western scholarship the discussion of the role of sub-state actors in international politics since 1980s,19 the decentralization of foreign policy and “actorness” was neglected in the last decade, if not a taboo, in China.20 From Chinese perspective, state was the only legitimate actor in world politics and the only unit of analysis for Chinese scholarship in international politics, especially in the field of national security and diplomacy. 21 Such sovereign absolutism, however, has been relaxed in recent years, especially in the field of
16 ‘Zhang Deijiang Xiang Quanguo Renda Changweihui Disiren Xianggang Tebei Xingzhengqiu Jibianfa Weiyuanhui Zucheng Renyuan Banfa Renmingshu (Zhang Deijiang Issued the Letters of Appointment to the Members of 4th NPCSCCommittee for the Basic Law of Hong Kong Special Administrative Region,’ Zhongguo Rendawang (www.npc.gov.cn), 30 June 2013. Accessed at http://www.npc.gov.cn/npc/xinwen/syxw/2013-06/30/content_1799567.htm, on 20 May 2015. 17 Ralf Horlemann, Hong Kong’s Transition to Chinese Rule: The Limits of Autonomy (London: Routledge, 2003), pp.74. 18 Ibid, pp. 72 – 78. 19 [1] Robert Keohane and Joseph Nye, Transnational Relations and World Politics (Cambridge, MA: Harvard University Press, 1973) [2] R. B. Bilder, ‘The Role of States and Cities in Foreign Relations,’ The American Journal of International Law, Vol. 83, No. 4 (1989), pp.821 – 831. [3] Ivo Duchacek, The Territorial Dimension of Politics Within, Among and Across Nations (Boulder: Westview Press, 1989). [4] Ivo Duchacek, ‘Perforated Sovereignties: Towards a Typology of a New Actor in International Relations,” in H. Michelmann and P. Soldatos edited, Federalism and International Relations: The Role of Subnational Units (Oxford: Oxford University Press, 1990), pp.1 – 33. [5] T. H. Cohn and P. J. Smith, ‘Subnational Governments as International Actors: Constituent Diplomacy in British Columbia and the Pacific Northwest,’ BC Studies, Vol. 110 (1996), pp.25 – 59. [6] Michael Keating, ‘Paradiplomacy and Regional Networking,’ Paper presented in Forum of Federations: an International Federalism, Hanover, October. Accessed at http://www.forumfed.org/libdocs/ForRelCU01/924-FRCU0105-eu-keating.pdf, on 20 January 2015. 20 [1] Wai Ting, ‘The External Relations and International Status of Hong Kong,’ Occasional Papers/Reprints Series in Contemporary Asian Studies, No. 2 (School of Law, University of Maryland, 1997). [2] Lucy M. Cummings and James Tang, ‘The External Challenge of Hong Kong’s Governance: Global Responsibility for a World City,’ in Ming Sing edited, in Politics and Government in Hong Kong: Crisis under Chinese Sovereignty (London: Routledge, 1998), pp.176 – 197. [3] Simon Shen, ‘Hong Kong’s Bilateral Relations – Taiwan, Japan and the U.S.,’ Presentation in Brookings Institute, 5 October 2010. 21 [1] Gerald Chan, Chinese Perspectives on International Relations: A Framework for Analysis (Basingstoke: Palgrave Macmillan, 1999). [2] Zhengyi Wang, ‘Researching International Relations in China: From Security to International Political Economy,’ in Shaun Breslin edited, Handbook of China’s International Relations (London: Routledge, 2010). “low politics” like economic and cultural affairs.22 Recent analyses published in China related to the concept of sovereignty have suggested that in the age of globalization developing countries like China face the dilemma between upholding the hard-earned sovereignty and eroded sovereignty for the sake of economic advancement. 23 In practical sense, the introduction of “One Country, Two Systems” indeed reveals that such sovereignty absolutism could be scarified for the greater national interests like unification of territories or economic development.24 The principle of “putting aside controversies, develop together (gezhi zhengyi, gongtong kaifa)” proposed by Deng in solving the territorial disputes with Japan and Southeast Asian countries respectively also put economic development ahead of sovereignty disputes. Illustrated by the Ministry of Foreign Affairs, the principle of “putting aside controversies, develop together” suggests that while the territorial sovereignty undisputedly belongs to China, China is willing to develop the disputed regions for mutual benefits and create promising conditions for resolving the dispute in a peaceful and reasonable manner.25 Scholars suggest that such principle implies that the disputed regions would be operated under de facto shared sovereignty yet resolving the dispute in diplomatic and economic way, for example as one of the signatories of the “Declaration on the Code of Conduct on the South China Sea.26 The growing relaxation on the concept of sovereignty especially on “low politics” in global affairs, allows rooms for Hong Kong to contribute in Chinese foreign policy – at least before the Xi’s leadership.
In conceptualizing the possible role of Hong Kong in Chinese foreign policy, Jane Lee and Gerald Chan have developed the realist-liberal model before the handover, which is subsequently being tested by the case of Margaret Chan in representing China for the position of Secretary-General in World Health Organization (WHO).27 In defining the realist-liberal model, Lee and Chan argue that the “traditional liberal” Hong Kong identity, if properly used, could have assisted the “traditional-realist” agenda of Beijing, in terms of economic internationalization and projecting national interests. Such blending of liberalism and realism does not rest at the academic discussion but also the wishful thinking of Beijing, as reflected by the then-Commissioner of the FMCOPRC Lu Xinhua in his public talk in the Chinese University of Hong Kong, signalling the five main missions for Hong Kong in assisting Chinese foreign policy:28
22 Simon Shen (2013), pp.109 – 111. 23 [1] Renwai Huang and Jie Liu, Guojia Zhuquan Xinlun (New Theory of National Sovereignty) (Beijing: Shishe Chubanshe, 2004); [2] Cong Li edited, Jingji Quanqiuhua Xinlun (New Theory of Economic Globalization) (Zhougguo Shehui Kexue Chubanshe, 2005). 24 Ming Dong, ‘The Principle and Flexibility in China’s External Relations: The Case of Hong Kong’, PhD Dissertation (London: University of London, 1991). 25 Ministry of Foreign Affairs of the People’s Republic of China, ‘Putting aside Controversies, Develop together (gezhi zhengyi, gongtong kaifa)’. Accessed at http://www.mfa.gov.cn/chn//gxh/xsb/wjzs/t8958.htm , on 1 May 2015. 26 [1] Jiaoling Xiao, Guojia Zhuquanlun (Theory on National Sovereignty) (Beijing: Shishe Chubanshe, 2003), cited in Simon Shen, ‘Hong Kong’s Sub-sovereignty Status and its External Relations’, pp.110. [2] Guanqun Su, Zhongguo de Nanhai Zhanlue (Chinese Strategy in South China Sea) (Taipei: Independent and Unique, 2013). 27 [1] Jane Lee and Gerald Chan, ‘Hong Kong’s Changing International Relations Strategy,’ in Joseph Cheng and Beatrice Leung edited, Hong Kong SAR: In Pursuit of Domestic and International Order (Hong Kong: Chinese University Press, 1997), pp.177 – 200. [2] Simon Shen, ‘Borrowing the Hong Kong Identity for Chinese Diplomacy: Implications of Margaret China’s World Health Organization Campaign,’ Pacific Affairs, Vol. 81, No.3 (Fall 2008), pp.361 – 382. 28 ‘Zhongda Yanjiang (Talk at CUHK),’ Wenweipo, 23 September 2006. Cited in Simon (2008). 1. To demonstrate the successful implementation of ‘One Country, Two Systems” to Taiwan;
2. To assist China’s global economic cooperation through financial, trading and transportation networks;
3. To assist China’s outreaching and energy diplomacy;
4. To support China’s multilateral diplomacy by hosting international conferences and exhibitions; and
5. To support China’s public diplomacy and cultural diplomacy by mobilizing public involvement in foreign affairs.
In fact, playing the Hong Kong cards for the sake of Chinese foreign policy is not limited to the case of Margaret Chan, especially if we include the civil society and the business sector in Hong Kong. For instance, Hook and Neves suggested that the huge investment of local tycoons Li Ka-shing in Europe could possibly demonstrate the influence of Chinese firms in European market after China fully adapts to World Trade Organization’s standard.29 Beatrice Leung’s research on the role of Hong Kong and Macao in Sino-Vatican relations suggests that China has played the ‘divide-and-rule’ strategy between the Hong Kong and Macao Churches in order to affect the Sino-Vatican relations and limits the counterpart’s involvement in Hong Kong democratization.30 The business investment of Hutchison Whampoa in Panama has alerted the U.S. Congress which the conservatives believed that the close relationship between Li’s family and Beijing may make the Li as the “white-glove” of Beijing and the investment is driven by strategic concerns rather than purely business motives.31 Compared to the failure of direct investment in Iceland and United States, the successful acquisition of Chinese first aircraft carrier, the construction of Nicaraguan Canal are all under companies with Hong Kong identity, even though the owners of those companies are being framed as closely affiliated to Beijing.32
While there are successful cases in demonstrating Hong Kong’s autonomy in conducting its external relations and assisting Chinese foreign policies, the overall impression is far less than
29 Brian Hook and Miguel Santos Neves, ‘The Role of Hong Kong and Macau in China’s Relations with Europe,’ The China Quarterly, Vol. 169 (March 2002), pp.108 – 135. 30 Beatrice Leung, ‘Sino-Vatican Relations and the Intermediary Roles of Hong Kong and Macau,’ in Roland Vogt edited, Europe and China: Strategic Partners or Rivals? (Hong Kong: Hong Kong University Press, 2012), pp.201 – 218. 31 [1] Simon Shen, ‘Xianggang Cizhuquan Waijiao yu Lijiacheng (Hong Kong sub-sovereign diplomacy and Li Ka-shing),’ Yazhou Zhoukan, 16 May 2010. [2] ‘Banama Yunhe Tuoli Meiguo Kongzhi (Panama Canal escaped from American control),’ BBC Chinese, 14 December 1999. Accessed at http://news.bbc.co.uk/chinese/trad/hi/newsid_560000/newsid_564400/564423.stm, on 20 May 2015. 32 [1] ‘Xuzengping: Maihui Waliangge de Shandongren (Xu Zengping: the Shandong man who bought back Varyag), Zhongguowang (China.com.cn), 19 May 2014. Accessed at http://people.china.com.cn/2014-05/19/content_6916728.htm, on 14 May 2015. [2] ‘About HKND’, HKND Group. Accessed at http://hknd-group.com/portal.php?mod=list&catid=30, on 15 May 2015. [3] ‘Zhongguo Chengjian Nijialagua Yunhe Yanchi Yinian Donggong (China has delayed one year to commence the construction of Nicaragua Canal), BBC Chinese, 5 January 2014. Accessed at http://www.bbc.com/zhongwen/trad/world/2014/01/140105_nicaragua_china_canal, on 8 May 2015. satisfactory.33 While both Mushkat and Shen agreed that the bureaucratic inertia and the lack of global vision among political and civil society are the main reasons that Hong Kong fails to live with the true name of ‘Asia’s World City’, analyses diverge from the role of Chinese government in affecting the external autonomy of Hong Kong. Mushkat suggests that the narrow self-interest of different stakeholders in the community as well as the lack of strategic vision contribute the lack of actions in exercising external autonomy even though China has given the green lights through the Basic Law and extension of the application of international treaties to the territory.34 On the contrary, Shen suggested that the lack of clear signals from Beijing in defining the international role of Hong Kong vis-à-vis other Chinese cities and the over-reliance of Hong Kong citizens towards the opportunities in China make Hong Kong difficult to sustain its “Asia’s World City” discourse.35 Both analyses, however, lack the discussion of the characteristics of Hong Kong in relation to Beijing, as well as Beijing’s changing interests to global politics and regional dynamics. Recalling the realist-liberal framework suggested by Lee and Chan, the “liberal” identity of Hong Kong is rather instrumental to the “realist” agenda of China. As a result, if there is an inherent conflict between the liberal identity and the realist agenda, the external autonomy of Hong Kong may be curtailed, which will be shown in the rest of the paper through three case studies: 1) the Manila Hostage Crisis in 2010 and the post-crisis management; 2) the non-inclusion of Hong Kong as a founding member of Asian Infrastructure Investment Bank and 3) the case of Yousef Boushvash and the Congo Sovereign Immunity. These three cases, to some extent, demonstrate how the “independent and liberal” identity of Hong Kong may be scarified under Chinese foreign policy and national interests.
Paradiplomacy May Not be Welcomed – Placing Hong Kong into the Grand Strategy of China
While the classical definition of paradiplomacy could always refer to ‘the highest level of personal and parallel diplomacy, complementing or competing with the regular foreign policy of the minster concerned’36, recent discussion of paradiplomacy by Ivo Duchacek and Kincaid concerned the external activities of, usually confined to the constituent unit, a region parallel to the state-to-state diplomacy.37 Even though the domestic status of Hong Kong is not being recognized by Beijing as the federal unit like federal state in United States or Landers in Germany, the international status of Hong Kong gives its independent actorness in global arena, which sometimes “extends” to sensitive issues like security and foreign policy. For example, alongside with China, Hong Kong has joined as an independent jurisdiction of the
33 [1] Roda Mushkat, ‘Hong Kong Exercise of External Autonomy: A Multi-Faceted Appraisal,’ The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct 2006), pp.945 – 962. [2] Simon Shen, ‘Re-branding without Re-developing: Constraints of Hong Kong ‘Asia’s World City’ Brand,’ The Pacific Review, Vol. 23, No. 2 (2010), pp.203 – 224. 34 Roda Mushkat (2006), p.960. 35 Shen (2010), p.220. 36 Rohan Butler, ‘Paradiplomacy’ in A. Sarkissian edited, Studies in Diplomatic History and Historiography (London: Longman, 1961), pp.12 – 25. Cited by Alexander S. Kuznetsov, Theory and Practice of Paradiplomacy: Subnational Governments in International Politics (London: Routledge, 2015), p.26. 37 [1] Ivo Duchacek, ‘Perforated Sovereignties: Towards a Typology of a New Actor in International Relations,” in H. Michelmann and P. Soldatos edited, Federalism and International Relations: The Role of Subnational Units (Oxford: Oxford University Press, 1990), pp.1 – 33. [2] John Kincaid, ‘Constituent Diplomacy in Federal Polities and the Nation-State: Conflict and Co-operation,’ in H. Michelmann and P. Soldatos edited, Federalism and International Relations: The Role of Subnational Units (Oxford: Oxford University Press, 1990), pp.54 – 75. Financial Action Task Force on Money Laundering (FATF/GATI), which the task force takes more responsibility in fighting terrorism financing since 2001. The annual mutual evaluation report of Hong Kong also shows that the territory has taken necessary steps to institutionalize most of the international initiatives for combating terrorism financing, with no core and key recommendations being rated as “not compatible”.38 In addition, Hong Kong is the first port in Chinese soil to join the US initiated Container Security Initiative (CSI) since 2003, and being praised as “exemplary” by United States, hinting that the subsequent joining of Shenzhen and Shanghai in 2005 may be partially influenced by Hong Kong.39 However, if the independent status of Hong Kong may not necessary beneficial to Chinese foreign policy, such independent status will always be downplayed by China.
Manila Hostage Crisis in 2010 and the APEC meeting in 2013
The Manila Hostage Crisis, happened in 2010, was one of the important events in triggering the discussion of Hong Kong international status. Prior to that event, the discussion is rather lacking as shown by the relatively low exposure in the academic circle.40 Officially referred as the Rizal Park Hostage-taking Incident by the Philippines government, a former Philippine National Police Rolando Mendoza had hijacked a tourist bus which had 20 tourists and a tour guide from Hong Kong, on 23 August 2010. 41 The incident ended with 8 hostages, all from Hong Kong family, killed and 3 of the hostages were seriously injured.
Being broadcasted live on television and the internet, the incident resulted in a severe tension among Philippines, China and Hong Kong. The then-Chief Executive Donald Tsang had instantly called the President Aquino III for handling the incident and asked for the guarantee of the safety of Hong Kong tourists, yet did not connected.42 Subsequently after the incident, Donald Tsang further wrote an official letter to the President Aquino III directly, who found the letter diplomatic insulting and the callings from Donald Tsang ignored the fact that Philippines and Hong Kong are not in equal footing in international politics.43 In fact, the controversies stirred up by Donald Tsang’s action were equally severe as the incident per se. His actions and the responses given by Aquino III had stirred up the discussion of “sub- sovereignty”, a term introduced by Simon Shen in conceptualizing the “external power and autonomy” enjoyed by Hong Kong under “One Country, Two Systems”.44 Tsang’s actions and the terminology introduced by Shen instantly resulted in the backfired from the
38 FATF Secretariat, ‘Mutual Evaluation of Hong Kong, China,’ 4th Folllow-up Report , 19 October 2012. 39 U.S Department of State, ‘U.S.-Hong Kong Policy Act Report,’ 1 April 2005. Accessed at http://2001-2009.state.gov/p/eap/rls/rpt/44543.htm, on 3 May 2015. 40 Shen (2010). 41 Incident Investigation and Review Committee, ‘First Report of the Incident Investigation and Review Committee on the August 23, 2010 Rizal Park Hostage-taking Incident: Sequence of Events, Evaluation and Recommendations,’ 16 September 2010. Accessed at http://www.gov.ph/2010/09/17/first-report-of-the-iirc-on-the-rizal-park-hostage-taking-incident/, on 4 May 2015. 42 ‘Fei Guanyuan Gaikou: Cengyingquan da Jiexian zhi Shilian (Philippine Official Changed their Words: Donald Tsang called the Unofficial Line is the reason for not connecting), Mingpao, 27 August 2010. 43 [1] ‘Gangfu Jiaoshanhou, Fei Zhongtong Gan Maofan. Xinjian lie Chuli Xijie Yaoqiu, Ju Toulu Shuming (Philippine President felt offended by the lecturing from Hong Kong government on handling the incident: The letter listed the demands in details, refusing to disclose the underwriter of the letter,’ Mingpao, 10 September 2010. [2] ‘AJinuo Jing Anzhi Cengyinquan Zhidian Budang (Aquino III implies the callings from Donald Tsang as inappropriate,’ Wenweipo, 10 September 2010. 44 Shen (2010), pp. 115 – 116. conservative and nationalist camp.45 Though the public opinion in general was supportive to Donald Tsang’s action, some pro-Beijing commentators argued that the actions were in appropriate in the sense that diplomatic actions fell into the category of Beijing’s business but not Hong Kong according to the Basic Law, thus ‘usurping China’s sovereignty’.46 Even though some commentators from like Peter Qiu supported the action and asked for the reconsideration of the strategic division of labour between China and Hong Kong in international politics, the debate was silent after Beijing’s ruling of requiring “special treatment as a special case”.47
Handling of the incident remained rather low-profiled until 2013, when President Aquino III and Leung Chun-ying both attended the APEC meeting in Bali, subsequently arranged a meeting to discuss about the incident on 7 October. While most of the analyses focused on the arrangement of the meeting which to some extent violated the diplomatic norms, little discussion focused on the fact that prior to the meeting Leung had met with Xi Jinping. It was later revealed that after Leung had expressed the demands from the victims of the incident, Xi instantly instructed the related departments for further actions.48 The Ministry of Foreign Affairs, shortly after the meeting, reemphasized Beijing’s position on the incident and asked for more serious treatment from the Philippines government, which was being interpreted as giving the green light to Hong Kong government for more assertive actions.49 Nonetheless, when meeting with Aquino III, rather than playing an assertive role, Leung was being mistreated by the Philippine government through the diplomatic setting and the leak of information discussed during the meeting. We may accuse of the tricks played by Aquino III in humiliating Leung and the Hong Kong delegation, yet both experienced journalists and political consultants agreed that the lack of Leung’s awareness about the independent identity of Hong Kong may also contribute to the maltreatment in the diplomatic meeting and led to the diplomatic disaster of Hong Kong independent status50 – and Leung was always being perceived as the conservative side of the pro-Beijing camp which criticized the concept of sub-sovereignty 3 years before. Indeed, when Leung was being asked about the details of the meeting, Leung just reiterated the concerns expressed by Xi jinping prior to the meeting,
45 [1] ‘Ruanchishan zai 8 yue 24 ri Fenghuang Weishi Guanyu Feilubin Xiechi Renzhi Shijian de Miulun (The fallacy made by Ruan Chishan on 24 August about the Manila Hostage Incident),’ 25 August 2010. Accessed at https://www.youtube.com/watch?v=u_l1mxrzoU4, on 4 May 2015. [2] Nai Keung Lau, ‘Xianggang Meiyou Cizhuquan (Hong Kong possess no sub-sovereignty),’ Hong Kong Economic Journal, 31 August 2015. [3] Li Fun Kong, ‘Tianxia ben Wushi, Cizhuquan mingcheng Chushi (It is the terminology of “sub-sovereignty” that matters),’ Hong Kong Economic Journal, 4 September 2010. 46 [1] Nai Keung Lau, ‘Xianggang Meiyou Cizhuquan (Hong Kong possess no sub-sovereignty),’ Hong Kong Economic Journal, 31 August 2015. [2] ‘Meiyou Cizhuquan, Zhihao Mengshanwei (There is no sub-sovereignty but only coat-tail power’, Hong Kong Economic Journal, 3 September 2010. 47 [1] Peter Qiu, ‘Shiji Fengyun: Cengyinquan Zhidian Fei Zongtong Yinfa de Sikao (Storm of the Century : The Implications of Donald Tsang’s callings to Philippine President), Wenweipo, 4 September 2010. [2] Shen (2013), p.116. 48 ‘Liangzhenying Fei Zongtong Duanzhan Jiaotan: Waijiaobu zhihui cu Feiguo Tuoshan Jiejue Renzhi Shijian (Leung Chun Ying had a short conversation with Philippine President, the Ministry of Foreign Affairs Promised to Demand Philippine Government to Resolve the Hostage Incident Properly),’ Singpao, 8 October 2013. 49 Jihong Ruan, ‘Waijiao kao Zhongyang, Cuoshi kao Xianggang (Diplomacy should rely on the Central Government, Measures should be conducted by Hong Kong),’ Mingpao, 9 October 2013. 50 [1] Mei Yee Leung, ‘Liangzhenying Waijiao Weijie Shenxiansi (Leung Chun Ying diplomatic actions failed before they commenced),’ Mingpao, 10 October 2013. [2] Chi Kin Lo, ‘Yichang Waijiao Jueli Puxie Tequ Beige (Struggled Diplomacy as the Elegy of Hong Kong SAR),’ Mingpao, 16 October 2013. showing that the central government really cared about the incident. 51 Since then, even though there were many government officials and legislators involved in assisting the victims in negotiating with the Philippines government, Leung and the Hong Kong government were being perceived as a marginalized role during the negotiation and the incident was incorporated into the China-Philippines relations.52 Indeed, it is interesting when we worked with the timeline of the events related to the incident after APEC meeting in 2013, central government is always referred in government news release. 53 Based on the longitudinal reports conducted by Mingpao, a Chinese newspaper, it was, surprisingly, observed that Hong Kong government took actions once there was announcement or declaration coming from Beijing, for instance after Premier Li Keqiang showed an assertive gesture on the incident, the government started to discuss about the possible sanctions against Philippines; once the People’s Daily, the official newspaper, and the Ministry of Foreign Affairs demanded for an apology and sincerity, the Hong Kong government also shifted their focus on apology as well as severe sanctions if the negotiation broke.54 Although it should be noted that the sequential of events happened in Beijing and Hong Kong does not contribute to any causal relations between, it was indeed well noted by commentators like Ruan and Lo that the incident has already been absorbed into the grand plot of China in dealing with Philippines, which the incident itself is mere a tiny part of the conflicts between two nations.55 The independent status of Hong Kong, as a full economic entity in APEC, was in vain under the grand strategy of China.
The Non-inclusion of Hong Kong as a Founding Member of Asian Infrastructure Investment Bank
Indeed, such strategic calculation on the usage of Hong Kong independent identity, even in economic field, is observed in a more recent Asian Infrastructure Investment Bank (AIIB). Being as one of the important initiatives for Chinese foreign policy, the AIIB project was proposed in 2013 and launched in October 2014. Applications were received from Asian neighbours as well as from European states, including both Hong Kong and Taiwan have submitted their application. As of 15 April 2015, the multilateral interim secretariat announced that there are 57 prospective founding members for the forthcoming AIIB, yet without the name of Hong Kong and Taiwan. 56 According to the personal blog of the Financial Secretary John Tsang, Hong Kong government has expressed their wills in joining
51 ‘Liangzhenying Fei Zongtong Duanzhan Jiaotan: Waijiaobu zhihui cu Feiguo Tuoshan Jiejue Renzhi Shijian (Leung Chun Ying had a short conversation with Philippine President, the Ministry of Foreign Affairs Promised to Demand Philippine Government to Resolve the Hostage Incident Properly),’ Singpao, 8 October 2013. 52 ‘Renzhi pi Liang Weigouban, Cu Zhongyang Jieru (Hostage victims criticized the inability of Leung, demanding the intervention from central government),’ Mingpao, 9 October 2013. 53 ‘Lifahui: Baoanju Juzhang jiu Tequ zhengfu Chuli Feilubin Renzhi Shijian de Gongzuo Xiuhui Daixu Yian Bianlun Zongjie Fayan (Legislative Council: The Conclusion Remark by the Secretary for Security on the Adjourned Motion Debate regarding the Government works in handling the Manila Hostage Incident),’ 24 October 2013. Accessed at http://www.info.gov.hk/gia/general/201310/24/P201310240011.htm, on 4 May 2015. [2] 54 For further details of the timeline of the events, it could be refer to Mingpao special website for the incident. Accessed at http://specials.mingpao.com/cfm/Main.cfm?SpecialsID=226, on 5 May 2015. 55 [1] Jihong Ruan, ‘Waijiao kao Zhongyang, Cuoshi kao Xianggang (Diplomacy should rely on the Central Government, Measures should be conducted by Hong Kong),’ Mingpao, 9 October 2013. [2] Chi Kin Lo, ‘Yichang Waijiao Jueli Puxie Tequ Beige (Struggled Diplomacy as the Elegy of Hong Kong SAR),’ Mingpao, 16 October 2013. 56 ‘Prospective Founding Members,’ accessed at http://aiibank.org/members.html, on 8 May 2015. the AIIB since December 2014, and sources from the government suggested that it has submitted the application in March, which before the application deadline for the prospective founding membership.57 Nonetheless, not only Hong Kong is not qualified from being the founding member of AIIB, but also remains unknown about the status of Hong Kong in the future AIIB architect.
The missing membership of Hong Kong (and Taiwan) did not stir up much debate on the international status of Hong Kong, but rather on how Hong Kong will be affected by AIIB as a China-led international bank and a plot of Chinese foreign policy.58 In fact, Hong Kong has its traditional to become a full member in regional and international economic and financial institutions. For instance, Hong Kong possesses full member entity in Asian Development Bank (ADB), with the voting power of 0.736% and capital contribution of 0.547%,59 and joins APEC and World Trade Organization as a full member. In Asian Development Bank, Hong Kong has its own representative in the Board of Governors (John Tsang) and alternate governor (Norman Chan, the Chief Executive of Hong Kong Monetary Authority), as well as being represented by a director (Anthony Baker) different from that of China (Zhongjing Wang).60 Apart from formal international financial and economic architect, Hong Kong has also joined regional and international financial initiatives like the previously-mentioned FATF and the Chiang Mai Initiative Multilateralization (CMIM). Nonetheless, the participation of Hong Kong in CMIM is being absorbed into the contribution of China, but Hong Kong is also being recognized as an ‘independent monetary administration on its own’.61 The Monetary Authority is being one of the signatories of the initiative, under the name of ‘The Monetary Authority of Hong Kong, China’.62 Indeed the Legislative Council of Hong Kong has recently prepared two different scenarios of Hong Kong’s future participation and capital contribution: joining as an ordinary member or joining as a part of Mainland delegation. 63 Obviously, Hong Kong government is well-aware of its independent international status in financial and economic sector.
57 [1] John Tsang, ‘Yatouxing (Asian Infrastructure Investment Bank),’, My Blog, 29 March 2015. Accessed at http://www.fso.gov.hk/chi/blog/blog290315.htm, on 5 May 2015. [2] ‘Gangfu yi tichu shenqing jiaru yatoxing (Hong Kong Government has submitted its application to join AIIB),’ Singtao Daily, 23 March 2015. 58 [1] ‘Yatouxing yi liju Xianggang hebi xinji (AIIB is driven by mere interests, Hong Kong can wait),’ Apple Daily, 3 April 2015. [2] Qingtian Hong, ‘Yidai Yilu he Yatouxing xuyao Xianggang (One Belt One Road and AIIB require Hong Kong),’ Hong Kong Economic Journal, 16 April 2015. [3] Bauhinia Foundation Research Centre, ‘Yatouxing chire Xiangang Zhubei haole ma? (Is Hong Kong prepared for the tide of AIIB?), Hong Kong Economic Times, 25 April 2015. 59 Asian Development Bank, ‘Members, Capital Stocks, and Voting Power,’ ADB Annual Report 2014 (Manila: Asian Development Bank, 2014). Accessed at https://openaccess.adb.org/bitstream/handle/11540/4312/oi-appendix1.xlsx. On 5 May 2015. 60 [1] Asian Development Bank, ‘Board of Governors’. Accessed at http://www.adb.org/about/board- governors, on 5 May 2015. [2] Asian Development Bank, ‘Board of Directors.’ Accessed at http://www.adb.org/about/board-directors, on 5 May 2015. 61 ‘Hong Kong SAR Joins ASEAN+3 Foreign Reserve Pool,’ Xinhua, 4 May 2009. 62 [1] International Relations Department of Philippines, ‘Chiang Mai Initiative Multilateralization’, March 2015. Accessed at http://www.bsp.gov.ph/downloads/publications/faqs/cmim.pdf, on 10 May 2015. [2] Hong Kong Monetary Authority, ‘Chiang Mai Initiative Multilateralization (CMIM) comes into Effect on 24 March 2010,’ Press Release, 24 March 2010. Accessed at http://www.hkma.gov.hk/eng/key-information/press-releases/2010/20100324-3.shtml. On 10 May 2015. 63 Karl Chiu, ‘Asian Infrastructure Investment Bank,’ Research Publication ISE13/14 – 15, 20 May 2015. Accessed at http://www.legco.gov.hk/research-publications/english/essentials-1415ise13-asian- infrastructure-investment-bank.htm, on 30 May 2015. The considerations from Beijing, however, are different. In the CMIM case, as suggested by Chinese Finance Minister Xie Xuren, is mere putting ‘China and Japan contribute equally to the pool.’64 By comparing China’s contribution to Japan’s contribution to the region, the reply from Xie hinted that the inclusion of Hong Kong’s contribution has its nationalistic motive behind, giving the long rivalry between China and Japan in the region. On the other hand, the absorption of capital contribution from Hong Kong but maintaining its independent identity of monetary administration is also being perceived as ‘rational and logical’ by Japanese Financial Minister Kaoru Yosano, and praised the importance of Hong Kong in Asian economy.65 In this case, the independent identity of Hong Kong is preserved and utilized for Chinese nationalistic foreign policy in the region. However, in the case of AIIB, the main concerns of Beijing, according to sources from pro-Beijing media, are the implication to the application of Taiwan to AIIB and the image of China in the region. 66 From Chinese perspective, the aim of AIIB is two-folded: on one hand the AIIB allows China to raise fund for her own infrastructure improvement and further economic prosperity, on the other hand it is the foreign policy tool fostering regional integration.67 More importantly, Beijing wishes to position AIIB as an alternative model from that led by United States and Japan in the region, under the ADB framework. As the result, the institutional architect and the governance model suggested for the future AIIB, at least on paper, aims to respond to the criticism China made against the US-Japan model, such as the veto power in World Bank, the asymmetric contribution and voting power possessed by the developed world and the marginalization of voices from the developing countries, even though in practice China may still remain veto power in AIIB.68 As the result, in order to minimize the challenges towards such image building, Beijing is rather hesitated to allow Hong Kong joining as a founding member in AIIB as this will automatically grant Hong Kong the voting right in AIIB governance, even though Hong Kong already has the experience of joining regional financial institutions since 1969. Indeed, when we reviewed the participation of Hong Kong officials in the discussion of AIIB preparatory works, they were invited as the members of Chinese delegation to the meeting, i.e. invited according to Article 150 of the Basic Law, rather than an independent entity stipulated under Article 151.69
Moreover, the issue of Hong Kong application is further complicated by the application of Taiwan, where the original “One Country, Two Systems” wishes to be introduced. Revealed by Taiwan media, Beijing has proposed to Taiwan for using the “Hong Kong model”, being part of the delegation and join in as an economic entity like Hong Kong, yet subsequently being rejected.70 John Lim, a researcher in Taiwan, suggested that the motivation behind
64 Hong Kong SAR Joins ASEAN+3 Foreign Reserve Pool,’ Xinhua, 4 May 2009. 65 Ibid. 66 ‘Dujia: You Zhongguo Longduan Gangru Yatouxing Huowu Toupiaoquan (Exclusive: Hong Kong may not have voting right in AIIB owing to the concern on China’s domination),’ Oriental Daily, 14 May 2015. Accessed at http://www.on.cc/hk/bkn/cnt/news/20150513/bkn-20150513233303556- 0513_00822_001.html, on 30 May 2015. 67 ‘Xi Jinping Holds Talks with Representatives of Chinese and Foreign Entrepreneurs Attending BFA Annual Conference,’ 29 March 2015. Accessed at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1250585.shtml, on 18 May 2015. 68 ‘How China Plans to Run AIIB: Leaner, With Veto,’ The Wall Street Journal, 8 June 2015. 69 ‘Yatouxing Chuangshi Chengyuanguo Beijing Kaihui, Xianggang Paiyuan Zuowei Zhongguotuan Chengyuan (Founding Member States of AIIB met in Beijing, Hong Kong officials joined as the member of Chinese delegation),’ RTHK, 28 April 2015. 70 ‘Tai ru Yatouxing, Lu Cengti Xianggang Moshi Zaoju (Taiwan rejected mainland China’s proposal on joining AIIB by Hong Kong Model),’ UDN, 21 April 2015. Accessed at proposal is to put Taiwan as the same as Hong Kong in international arena.71 By removing both Taiwan and Hong Kong from the founding membership of AIIB that China defines only sovereign states could join as the founding member, leaving the only possible way for Taiwan to join AIIB will be under the Hong Kong model, which is a non-state model. This may have a huge effect on Taiwan international identity, and to some extent the “external sovereignty” from the Democratic Progression Party’s perspective. In responses to this, Ma Ying-jeou, the President of the Republic of China, decided to draw a red-line on the application of AIIB, using the name of Chinese Taipei. No matter eventually Taiwan will join AIIB or not, it is evident that the international identity of Hong Kong as an independent economic and financial entity indeed becomes a scapegoat of the turf war between Beijing and Taiwan – though it actually fulfils the mission given by Beijing on the role of Hong Kong in Cross- Strait unification.
The Yousef Boushvash Case and the Congo Sovereign Immunity Case
While the first two cases concern about the Chinese foreign policy towards the Asian neighbours, the cases of Yousef Boushvash and the Congo Sovereign Immunity are more closely to Sino-American relations, which Hong Kong was once closely related to.72 While the world may be more familiar with the case of Edward Snowden who hided himself in Hong Kong before being fled to Russia, more cases related to extradition requests were filed before the case of Snowden.73 Even though there is an extradition agreement between United States and Hong Kong and most cases were successful like Australian financial analyst Trent Martin for his insider trading or Albert Hu Ke-jeng who was being involved in an investment fraud case, there were a few cases like Edward Snowden which Hong Kong did not extradite the suspect back to United States. Yousef Boushvash, an Iranian who was being charged by United States against the alleged illegal transfer of F-14 fighter jet parts from the United States to Iran via U.A.E. and Thailand, was arrested in Hong Kong in October 2007.74 While the United States has asked for an extradition from Hong Kong authorities and the extradition trial was arranged on 14 April 2008, Yousef Boushvash was released from custody on 11 April then disappeared afterwards.75 Sources from the United States leaked that Yousef was released in Hong Kong owing to the pressure from Beijing.76 It was suggested that Tehran http://udn.com/news/story/7333/850115- %E5%8F%B0%E5%85%A5%E4%BA%9E%E6%8A%95%E8%A1%8C- %E9%99%B8%E6%9B%BE%E6%8F%90%E9%A6%99%E6%B8%AF%E6%A8%A1%E5%BC%8F %E9%81%AD%E6%8B%92, on 18 May 2015. 71 John Lim, ‘Yatouxing yu Taigang Tongjihua Gongfongzhan (AIIB and the War to Make Taiwan identical to Hong Kong),’ Mingpao, 21 April 2015. 72 [1] James T. H. Tang, ‘Hong Kong in United States-China Relations: The International Politics of Hong Kong’s Reversion to Chinese Sovereignty,’ Journal of Contemporary China, Vol. 6, Issue 16 (1997), pp.419 – 433. [2] Bates Gill and James Tang, U.S.-Hong Kong Relations: Prospect for a Unique Partnership (Washington: Centre for Strategic and International Studies, 2007). 73 Ada Lee, ‘Hong Kong all too familiar with extradition requests,’ SCMP, 11 June 2013. 74 Colby Goodman, ‘Beyond Viktor Bout: Why the United States needs an Arms Trade Treaty,’ Oxfam Briefing Paper, No. 156 (6 October 2011), p.15. 75 [1] Ibid. [2] ‘Yousef Boushvash’, Iran Watch, 8 July 2010. Accessed at http://www.iranwatch.org/suppliers/yousef-boushvash, on 20 May 2015. [3] Mark Hosenball and Michael Isikoff, ‘Administration Frustration,’ Other News: Information that Markets Eliminate, 9 October 2008. Accessed at http://www.other-news.info/2008/10/administration-frustration/, on 20 May 2015. 76 [1] Mark Hosenball and Michael Isikoff, ‘Administration Frustration,’ Other News: Information that Markets Eliminate, 9 October 2008. [2] Ada Lee, ‘Hong Kong all too familiar with extradition requests,’ SCMP, 11 June 2013. government had initiated a direct negotiation with Beijing, signalling that Yousef Boushvash was a person closely related to Tehran and was wrongly accused by Washington as an agent and criminal.77 As a result, Beijing officials hinted to Hong Kong authorities that the case of Yousef Boushvash involved foreign affairs and national security which beyond the power of Hong Kong authorities to handle, suggesting the authorities to release him from custody. Such information was leaked in United States, yet Beijing has never confirmed or openly commented on the case. As Shen argued in the case of Yousef Boushvash, Beijing will likely handle incidents related to foreign affairs and national interests, through direct or indirect influence to local jurisdiction. For instance, the extradition agreement did not require Hong Kong to extradite “political criminals” or those who committed crimes not shared between two jurisdictions, Beijing could easily step in through defining the scope of case or giving reference for the idea of political criminals.78 As extradition trials conducted independently for each case, Beijing could selectively intervene towards the local jurisdiction through open or secret channel.
If the case of Yousef Boushvash represents Beijing intervention through secret channel to maintain her national interests, the Congo sovereign immunity case represent how Beijing could openly step in to maintain her interests through Hong Kong. The Congo sovereign immunity case took place in 2011 when FG Hemisphere Associates LLC, a U.S. vulture fund, sued Democratic Republic of the Congo and subsequently China Railway Group (Hong Kong) Limited via Hong Kong court.79 The core argument for the case was that whether absolute immunity, a stance held by People’s Republic of China, or restrictive immunity, a position held by United Kingdom and most of the common law jurisdiction, should be applied in the case. If absolute immunity prevails in Hong Kong, Hong Kong court had no jurisdiction on the case as it violates the idea of absolute immunity which the appeal had to be dismissed. Following the ruling in the Court of Appeal, FG Hemisphere had won the case thus implying that restrictive immunity would have applied in Hong Kong. Before the case was brought to the Hong Kong courts, the Ministry of Foreign Affairs had issued a series of letters to the Court demanding the Court to adhere to absolute immunity.80 From the fact sheet prepared by the Legislative Council, it was revealed that the Foreign Ministry had issued the third letter before the Court of Final Appeal (CFA) in August 2010, ‘stating how restrictive state immunity would affect the foreign policy of PRC…it would undoubtedly have a serious impact on the diplomatic efforts of the PRC.’81 The result judgment, in 3-2 majority, held that the court should seek the interpretation of Article 13(1) and 19 of the Basic Law from the
77 Simon Shen, ‘Sinuodengmen (er): Xianggang Jujue Meiguo Yindu de Yiliang Anli (Snowdengate (2): Hong Kong’s Precedence of Refusing America’s Extradition Requests),’ Mingpao, 15 June 2013. 78 Ibid. 79 ‘Democratic Republic of the Congo and Others v. FG Hemisphere Associates LLC [2011] HKCFA 42; (2011) 14 HKCFAR 95; [2011] 4 HKC 151; FACV 6/2010’, FACV Nos 5, 6 & 7 of 2010. 8 June 2011. Accessed at http://www.hklii.hk/cgi- bin/sinodisp/eng/hk/cases/hkcfa/2011/42.html?stem=&synonyms=&query=Democratic%20Congo, on 22 May 2015. 80 Simon Shen (2013), p.117. [2] Legislative Council Secretariat, ‘Fact Sheet: The decision by the Court of Final Appeal to seek an interpretation of the Basic Law from the Standing Committee of the National People’s Congress regarding the controversy of state immunity raised in the debt litigation of the Democratic Republic of Congo,’ FS17/11 – 12, 22 February 2012. Accessed at http://www.legco.gov.hk/yr11-12/english/sec/library/1112fs17-e.pdf, on 18 May 2015. 81 Legislative Council Secretariat (2012), p.2 Standing Committee on the Congo case, and the interpretation confirmed that absolute immunity was uphold in Hong Kong.
While the professionals and academic in legal discipline appraised for the fact that the Congo case has set the precedence for the local courts to seek for interpretation of the Basic Law voluntarily, the intervention from Beijing is always at the expense of Hong Kong international status and its relations to the liberal world. The case of Yousef Boushvash and the subsequent case of Edward Snowden harmed the relationship between Hong Kong and United States as apparently it was the Hong Kong authorities failed to detain Edward Snowden, and that of Yousef Boushvash, although there was no obvious sanction observed after both events.82 The application of absolute immunity in Hong Kong after the Congo trial, as some practitioners suggested, may put Hong Kong less competitive than Singapore as it ‘essentially renders Hong Kong an unsuitable forum in which to resolve disputes with states’.83 In fact, as Shen observed, cases of this kind could actually catch both China and Hong Kong in dilemma, either become a loophole of Chinese diplomacy if not intervened or jeopardising the integrity of Hong Kong court, which is always be perceived as one of the competitive advantage of Hong Kong, if Beijing has to intervene every single grey area.84 While the previous case will never happen owing to the strong desire of Beijing to maintain her foreign policy and sovereignty integrity as we could observe from the letter she sent to the CFA, the latter option will the only way-out and only time could tell whether it will eventually harm Hong Kong international reputation of a high degree of rule of law in Asian societies.
Furthering the Discussion: the Inherent Conflict between Realist China and Liberal Hong Kong
It should be noted that the relation between China and Hong Kong may be a lone case in the study of paradiplomacy, which the state and the constituent unit have profound difference in terms of governing ideologies and actual socio-economic system. Being a member of liberal world since the colonial period, Hong Kong socio-economic practices are more inclined to the Anglo-Saxon community and gain its long reputation of being a free port with a vibrant capitalist market, enjoy a high degree of rule of law and develop more sophisticated linkages with the developed world over developing world. On the other hand, China, as a rising power, maintains its anxiety over sovereignty and relationship towards the developing world, and willing to make sacrifice for the sake of national interests and economic development – and such scarify including the international status of Hong Kong. The above three case studies have partially reflected how Hong Kong autonomy may be constrained under the grand strategy of China in her foreign policy. Rather than what paradiplomacy originally suggests as “parallel to state diplomacy”, Hong Kong is rather a scapegoat for China in conducting her grand strategy, and slowly eroding its independent status in international arena. This may due
82 [1] Naill Fraser, ‘Hong Kong-US Relations may suffer from Snowden Saga,’ SCMP, 24 June 2013. [2] Simon Lee, ‘Snowden Exit May Affect U.S.-Hong Kong Visa Talks, Ventrell Says,’ Bloomberg, 27 June 2013. Accessed at http://www.bloomberg.com/news/articles/2013-06-27/snowden-exit-may- affect-u-s-hong-kong-visa-talks-ventrell-says, on 30 May 2015. [3] Peter Shadbolt, ‘Measured tones mask Washington’s fury with Hong Kong over Snowden,’ CNN, 24 June 2013. Accessed at http://edition.cnn.com/2013/06/24/world/asia/snowden-diplomacy/index.html, on 30 May 2015. 83 Andrea Tan, ‘Singapore Gains as Hong Kong Follows China Rule on Immunity,’ Bloomberg, 31 August 2011. Accessed at http://www.bloomberg.com/news/articles/2011-08-31/singapore-to-gain-as- hong-kong-follows-china-s-laws-on-sovereign-immunity, on 30 May 2015. 84 Simon Shen (2013), p.118. to the fact that the power and autonomy of Hong Kong is devolved from China in an arbitrary manner as discussed above, rather than protected by international law or independent constitutional court.
However, what is more worrying yet not being discussed above is that the implication of the liberal identity of Hong Kong towards Chinese national security. Since the reveal of “Document 9”, analysts suggested that the security concern of Beijing is more on the cultural and ideational influence from the West rather than tangible attacks.85 In fact, if we analyse the liberal identity of Hong Kong using the “Document 9” framework, Hong Kong at least “scores” six out of them, including promoting Western constitutional democracy, universal values, civil society, neoliberalism, West’s idea of journalism and the recent historical nihilism. 86 By coincidence, the newly drafted National Security Act has deliberately mentioned Hong Kong and Macao about their ‘shared duties’ and responsibility in preserving national security, and the suspected inclusion of the Hong Kong and Macao Office into the top-ranked Central National Security Commission (CNSC) also symbolizes that Hong Kong liberal identity may become a threat to Chinese national security. 87 In justifying a more stringent control on constitutional reform in 2017, Li Fei, the Deputy Secretary General of the Standing Committee of National People’s Congress, suggested that the election of Chief Executive in Hong Kong relates to the national security and long-term prosperity.88 The deliberate framing of Umbrella Movement as Colour Revolution or is sponsored by United States from the pro-Beijing politicians and media also echoed such concern from Beijing which further justified the forceful surveillance from Beijing on Hong Kong constitutional reform.89 Such inherent conflict between the liberal identity of Hong Kong and the realist agenda of China could never be resolved easily and the persisted tension will only curtain Hong Kong autonomy in conducting its external relations. Ironically, if Hong Kong really is assimilated and become indifferent from China in international arena, the most important function of Hong Kong may cease to exist: as the representation of an enlightened China in solving sovereignty dispute, to Taiwan, the Asian neighbours and the rest of the world.
85 Ankit Panda, ‘What Will China’s New National Security Council Do?,’ The Diplomat, 14 November 2013. Accessed at http://thediplomat.com/2013/11/what-will-chinas-new-national-security-council-do/, on 15 November 2013. 86 The ChinaFile Editors, Communique on the Current State of the Ideological Sphere: A Notice from the Central Committee of the Community Party of China's General Office. 8 November. Accessed at http://www.chinafile.com/document-9-chinafile-translation, on 20 November 2013. 87 [1] National People’s Congress Standing Committee, ‘Zhonghua Renmin Gongheguo Guojia Anquan Fa (Cao an) (Er ci Shenyi Gao) (National Security Act of the People’s Republic of China (Draft for the 2nd reading).’ Accessed at http://www.npc.gov.cn/npc/xinwen/lfgz/flca/201505/06/content_1935766.htm., on 6 May 2015. [2] ‘Zongguo Chengli Guoanhui Xianggang Dahuole (China Establishes the National Security Commission, A Big Trouble for Hong Kong),’ Apple Daily, 13 November 2013. 88 ‘Lifei Cheng Gang Puxuan She Guojia Anquan Fandui Gongmin Timing (Li Fei claimed that Universal suffrage in Hong Kong is related to national security so Citizens’ nomination must be rejected),’ BBC Chinese, 21 August 2015. Accessed at http://www.bbc.com/zhongwen/simp/china/2014/08/140820_hk_political_reform_npc, on 30 May 2015. 89 [1] ‘Fanzi Zhanzhong: Xianggang Yusan Meiguo Zhizao (Reflecting Occupying Central: Hong Kong umbrella is made in U.S.),’ Taikingpao, 21 December 2014. [2] ‘Yanse Geming: Xifang Meiti Dingxing Xianggang Zhanzhong (Colour Revolution: How Western media defines Hong Kong Occupy Central),’ Wenweipo, 5 October 2014.