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Hong Kong Harbor


By Simon Shen
April 2011
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As a Special Administrative Region of the People’s Republic of China, Hong Kong enjoys many international privileges which other Chinese cities do not have, particularly in terms of participation in international organizations and events independent of Beijing—although only with its authorization. Referred to as Hong Kong’s “external relations”, the term is used to differentiate them from “diplomatic relations”, which only sovereign states like China itself can exercise. However, the line dividing the two terms is not clearly defined. Since 1997, the difficulties involved in drawing boundaries for this grey area have been repeatedly illustrated by several cases that deserve greater attention.

Hong Kong is governed under the Basic Law, 1990 Chinese legislation which succeeded the Letters Patent and the Royal Instruction of the British colonial era as Hong Kong’s “mini-constitution”. Since the HKSAR was established by authorization of the Chinese National People’s Congress, it is understood that there shall be no nullifying power under this arrangement. Therefore, a key area of the Basic Law is to spell out the division of labor between the central and Hong Kong governments.

Article 13 of the Basic Law clearly states that “the Central People's Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region [and] the Ministry of Foreign Affairs of the People's Republic of China shall establish an office in Hong Kong to deal with foreign affairs.” This prevents Hong Kong from conducting diplomatic affairs with other states because its sovereignty lies with China. However, the same article also states that “the Central People’s Government authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law.” While there are no international laws which clearly distinguish between “foreign” or “diplomatic” relations and “external” relations, the former are conventionally interpreted as activities which can only be conducted by sovereign states, such as joining the United Nations or declaring war; the latter are seen as activities which don’t necessarily involve the concept of sovereignty.

In Article 151 of the Basic Law, the areas where Hong Kong may participate in the name of external relations are specifically indicated: “the Hong Kong Special Administrative Region may on its own, using the name ‘Hong Kong, China’, maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields.” As a result, Hong Kong is an independent “member economy” of the World Trade Organization and the Asia-Pacific Economic Cooperation grouping, and is an independent entity as “Hong Kong, China” when participating in the World Cup and Olympic Games.

Defending the Islands

Despite this, there are many cases where this article fails to offer precise guidance. One example is the difficulty of defining those civil activities which seek diplomatic results. For instance, dating back to the colonial era, Hong Kong was among the earliest Chinese territories to launch a nationalist campaign to defend China’s claim of sovereignty over the Diaoyutai Islands (known as the Senkoku Islands in Japan). To date, the Action Committee for Defending the Diaoyu Islands (ACDDI) of Hong Kong, comprising primarily pan-democrat activists, is still actively involved in the cause. Its most prominent action was to acquire ships and attempt to sail to these islands as a demonstration of China’s sovereignty over them. However, on each occasion the ships were stopped by the Hong Kong government for various technical reasons. For instance, in 2010, after a Chinese captain had been taken into custody by Japan near the islands, the Hong Kong activists were stopped because of allegations that “there are complaints of mice being found on their ship”, while “their fishery enforcement ship is suspected of carrying out non-fishery activities”. At the same time, concerned that nationalism might get out of hand, mainland activists were also persuaded to avoid the region so as to prevent unnecessary conflict with Japan. Within Hong Kong, it is widely believed that local activists failed to undertake their planned voyage for the same reason. However, under the “one country, two systems” concept, they could only be stopped legally for technical reasons.

If we examine the case in greater detail, the arguments given by Hong Kong have profound implications. If the real problem was that “the fishery enforcement ship is suspected of carrying out non-fishery activities”, then holders of tourist visas carrying out non-tourist activities – such as shouting in front of the Japanese Diet in Tokyo – would also be a problem. After all, activists have the right to fish outside Hong Kong as an external activity, but if such an activity is interpreted as being contrary to China’s diplomatic interests, whether it still falls under the realm of “external relations” is doubtful. Indeed, Tokyo seems to interpret things in this way, as its Ministry of Foreign Affairs tends to identify any activities by Chinese people as official and governmental, given the fact that it is difficult to undertake unauthorized attempts to claim sovereignty over the islands without permission. The current practice of the Hong Kong government seems to be to make best use of the grey area by exploiting technical rules. But in the long term, if more groups of activists with diplomatic motivations establish themselves in Hong Kong, the grey area might become very foggy indeed and incapable of being employed to handle future crises.

The Taiwan Example

The relationship between Hong Kong and Taiwan also involves the same grey area. While Beijing never considers cross-strait relations “diplomatic” in nature, Hong Kong-Taiwan relations clearly go beyond mere external relations for many taboos can be found. From 1997 to 2002, during Chief Executive Tung Chee Hwa’s administration, Paul Kwok-wah Yip was appointed as his special advisor for Hong Kong-Taiwan relations. Subsequently, this task has been institutionalized as part of the duties of the Constitutional and Mainland Affairs Bureau. What remains the same, however, is that Taiwanese representatives in Hong Kong cannot do anything not considered part of their official functions. Although they are formally appointed by their government, they are registered nominally in Hong Kong as representatives of a tourist agency. When several Taiwanese politicians attempted to enter Hong Kong as ordinary civilians, they were denied entry without specific reasons being given. The Taiwanese often criticize Stephen Lam, secretary of the mainland affairs bureau, though they realize he is only a scapegoat.

If diplomatic versus external relations represents the only dichotomy authorized by the Basic Law, Taiwan is then deliberately left as a special case. At present, due largely to the improved cross-strait relations under Taiwanese President Ma Ying-jeou, Hong Kong and Taiwan are enjoying the closest de facto official relations since 1997. Most notably, a Hong Kong Trade Development Council office was established in Taipei in 2008. Likewise, the Hong Kong-Taiwan Economic and Cultural Cooperation and Promotion Council was created as the official counterpart of the Taiwan-Hong Kong Economic and Cultural Cooperation Council, which had been formally set up by the Taipei government.

However, these agencies are unlikely to make independent decisions over areas of the aforementioned “external relations”. If the pro-independence Democratic Progressive Party were to resume power after the next election in Taiwan, whether these agencies would even survive is questionable. While Hong Kong’s economic relations with other external economies can be comfortably governed by its external relations regulations, there are sufficient reasons to worry whether pure economic cooperation between Hong Kong and Taiwan can be similarly sustained.

Hong Kong’s Security Role

One obvious area not included in Article 151’s explicit “authorized” external relations list is security. But the role Hong Kong plays in the anti-terrorist campaign has the world’s recognition. For instance, it is a member of the international Financial Action Task Force, and has served as the rotating chair of the organization. Hong Kong is also a signatory to the US-proposed Container Security Initiative, making it the only participating port on Chinese soil that authorizes the US to inspect suspicious freight containers. In the annual Hong Kong Policy Act Reports by the US congress, Hong Kong often has been praised for its contributions to the global anti-terror campaign.

Does anti-terrorism fall into the category of diplomacy and defence? As judged by the organization of the US federal government, the topic obviously includes both diplomatic and external relations, to borrow the terminology used by Hong Kong. In practice, according to interviews by the author, it is believed that Hong Kong has obtained approval from Beijing to join these anti-terrorist programs, even though the granting of such approval has not been made public. The problem is that while Hong Kong’s external relations-related security role is given the green light on the anti-terrorist front, it would be difficult to obtain a similar green light on other fronts, particularly when the US is involved. Indeed, Article 23 of the Basic Law, which is yet to be enacted, explicitly targets potential foreign intervention in Hong Kong that could include external relations-related security issues. For instance, pro-Beijing commentators have criticized the National Democratic Institute for its involvement with pan-democratic political parties in Hong Kong on grounds this could affect China’s national security. Applying the same logic, allowing the US to investigate cargo in Hong Kong, in the name of anti-terrorism, could also affect China’s national security. Interpretation of the grey area could become more complicated when and if Article 23 is enacted.

The most recent example which illustrates the overlap of external and diplomatic relations concerns the Manila Hostage Crisis of August 2010. During the crisis, which resulted in the deaths of eight Hong Kong tourists after a Philippine gunman hijacked their bus, Hong Kong took several actions that some pro-Beijing critics consider to be stretching the limits of external relations. The most notable was Chief Executive Donald Tsang’s repeated attempts to make direct phone calls to President Benigno Aquino III of the Philippines. At first, the Philippine government suggested that the president’s lack of response was due to technical reasons, but Aquino himself later explained that diplomatic protocol had dictated his decision not to accept the calls. When the crisis ended in bloodshed, the Hong Kong government sent a letter to the Philippines government requesting a thorough investigation; Aquino also interpreted this as diplomatically insulting.

Calling a Family Friend

Tsang rationalized his calls with two arguments: first, he is a family friend of Aquino and, second, he had Aquino’s contacts through the APEC platform, in which Hong Kong, the Philippines and China are all “member economies”. As a matter of fact, to be diplomatically correct, a chief executive of a Special Administrative Region of China is not, of course, on an equal footing with the president of the Philippines. However, if the chief executive addresses the highest executive of a fellow signatory of an organization that Hong Kong has joined based on its enjoyed external relations status, on a matter relevant to the organization’s realm, it would be highly debatable to call that diplomatically wrong. That is why, when pro-Beijing critics were complaining about Tsang’s conduct during the crisis, public popularity of his administration rose by a remarkable 10%, one of the few times he could claim increased public support in recent years.

Many academics normally critical of Tsang’s policies defended his actions and launched a series of debates with pro-Beijing critics in newspapers and magazines. The author, for example, wrote a series of articles about the theory of sub-sovereignty as devised from Western international relations terminology and Hong Kong’s external relations, which were criticized by Beijing supporters for “usurping China’s sovereignty”. In the end, Beijing ruled that Tsang’s calls required special treatment as a special case, implying that the grey area between external and diplomatic relations should not be explicitly defined, and that neither side was completely right or wrong. This ruling might be politically wise, but the impact of the Manila hostage crisis is far-reaching because the grey area has been brought to the attention of ordinary citizens due to the traumatic affect the crisis had on them.

Playing the Hong Kong Card in Chinese Diplomacy

To conclude, perhaps it is simply not necessary to clarify the boundaries of this grey area. Technically, drawing a rigid line and having the rules more clearly defined is nearly impossible; politically, losing such flexibility could work against Beijing’s own interests. However, much could be improved within this grey area. The key is to have stakeholders within the Hong Kong government who can assume responsibility for designing Hong Kong’s external relations strategy, and then coordinate with Beijing on relevant issues. Beijing should also implement a clearer diplomatic policy to make use of Hong Kong’s external relations for its own benefit. Otherwise, if both Beijing and Hong Kong fail to designate officials to handle such delicate matters, the huge potential of Hong Kong’s external relations will only be exploited by technocrats. This would create a lose-lose situation for both Hong Kong’s special status and China’s diplomacy.

Responding to an internally circulated consultancy report commissioned by the Hong Kong’s Central Policy Unit, drafters from the Shanghai Institute for International Studies (SIIS) – a leading international relations think tank headed by the brother of Foreign Minister Yang Jiechi – explicitly advised Hong Kong to serve as an experimental pioneer by using its external relations capacity to conduct tasks that Beijing is not suited to perform in public. If this can be achieved, the grey area of Hong Kong’s external relations could not only help maintain the unique status of Hong Kong compared with other Chinese cities, but also grant China a valuable diplomatic tool that other states do not possess.

The prerequisite for achieving this strategy, however, is that the tendency of dogmatic nationalists to politicize everything must be effectively checked. This again points to the most fundamental question of Beijing-Hong Kong relations: the level of trust that Beijing places on Hong Kong. Indeed, a similar strategy has already been applied in Macao, which is used by Beijing to develop closer ties with Portuguese-speaking countries. Sadly, at present, should Hong Kong wish to emulate its Macao counterpart and develop strategic external relations with Commonwealth countries, its reward would more likely be a stick rather than a carrot.

Dr. Simon Shen is an associate professor and external relations coordinator at the Hong Kong Institute of Education and an adjunct professor at the Chinese University of Hong Kong’s Master of Global Economy Program. He holds degrees from Oxford and Yale universities, has been a visiting scholar at the Brookings Institution and is a director of the Hong Kong Policy Research Institute.

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