The challenge of reengaging with Hong Kong

Blog: Responsible Statecraft

Abstract

Countries with consulates in Hong Kong are trying to figure out how to reengage with the Chinese special administrative region (SAR). Diplomacy and people-to-people interaction (including tourism) stopped in 2019 when anti-government demonstrations erupted. The freeze continued as the protests were quelled, first by Covid-19 fears and infection-control measures and then by China's imposition of a national security law (NSL) for Hong Kong.With conferences and big-ticket events resuming, Hong Kong is back in business. Tourists have returned, though arrivals in the first six months of 2023 were less than half the pre-pandemic level. Business, academic and civil society delegations have trickled in, what with mainland China itself open again.On the political front, countries are only gingerly reengaging with Hong Kong. Official visits by foreign government representatives are not happening – with one exception. In May, Dominic Johnson, Britain's minister for investment, became the first UK minister to visit in five years. In a local newspaper op-ed, he explained that, while Britain would engage "robustly and constructively" with China and Hong Kong when interests converge, it would "stand up for our values and be clear about our right to act when Beijing breaks its international commitments or abuses human rights."In March, U.S. Deputy Assistant Secretary of State Rick Waters spent a few days in Hong Kong on an unofficial visit before making similarly low-key stops in Shanghai and Beijing. Even as the U.S. and China have reengaged in senior-level talks, including between national leaders, Washington seems intent on keeping its distance from Hong Kong. The White House is reported to be barring Hong Kong Chief Executive John Lee from participating in the Asia-Pacific Economic Cooperation (APEC) Economic Leaders' Meeting in San Francisco in November. After the NSL was imposed in 2020, the U.S. sanctioned Lee, then Hong Kong's secretary for security, along with 10 other SAR and Chinese officials. What are the obstacles to U.S. reengagement with Hong Kong? Domestic political pressure from supporters of Hong Kong democracy activists, many in prison in the SAR or in exile, has played a part. The Congressional-Executive Committee on China recently issued a report on the Hong Kong judiciary and the NSL in which it called for sanctions to be imposed on 29 of the city's judges, including the chief justice. The Hong Kong government has not made it easy for the U.S. and other countries to reengage. The announcement of bounties for fugitive dissidents, prosecutions of politicians and activists, the closing down of media outlets, refusing visas to overseas scholars or blocking civil-society figures from entering the SAR, the legal effort to force online platforms to remove a protest anthem from the internet, and other actions by the SAR government have meant that diplomatic outreach can be politically problematic, especially for Washington, given that it no longer recognizes Hong Kong's autonomy. Apocalyptic narratives about life in the SAR have only gained currency inside the Beltway.Has the NSL eviscerated "one country, two systems?" Hong Kong continues to have agency, but under pressure, the government chooses to act in ways that it perceives Beijing would want it to. For example, Hong Kong's ban on seafood imports from Japan after Tokyo began to release Fukushima waste water into the ocean on August 24 hewed to Beijing's position. Second-guessing the sovereign has been a well-established modus operandi of Hong Kong public administration since British colonial days. That the common law still underpins Hong Kong's rule of law remains evident – the legal system continues to function as before, albeit with security-related cases in a separate domain. Consider court judgments such as the rejection of the government's request to remove the protest song from online platforms. (The government is appealing.) Or the overturning of the conviction of an investigative journalist for making false statements. Or a judgment by the Court of Final Appeal on a sentencing case that rejected lower-court references to mainland legal texts. As British minister Johnson argued for his country, it is still in the interest of the U.S. to engage with Hong Kong. The SAR will remain an important international financial center — granted, an international financial center in China – closely aligned with China's growth needs. Hong Kong's role in China's financial and economic development is secure, especially now that the city has restored law and order and moved beyond Covid. Should the U.S. continue to work with the SAR, despite the argument that doing so would benefit China and the Chinese Communist Party? American business and the market will answer that question, if Washington will let them rather than fixate on escalating decoupling. Ask local business leaders or foreign investors in Hong Kong, and many will say that the NSL has at least restored order, public safety and predictability. Whatever one's perspective on the law, what is clear is that the SAR's operating system remains distinct from the mainland's. Indeed, for some in Hong Kong, that Beijing moved ahead with the NSL, despite expectations of sharp criticism from the U.S. and the West, has put paid to the idea that China is setting up Shenzhen or Shanghai to eclipse the SAR. One China watcher in Hong Kong points to the city's universities and their academic freedom, still broader than in mainland institutions, as another key indicator.Cora Chan, a law professor at The University of Hong Kong, has analyzed the relationship between the Hong Kong and Chinese legal orders using German political scientist Ernst Fraenkel's "dual state" framework, which is useful for understanding why it is crucial for the U.S. and other countries that have had robust working relationships with Hong Kong to continue doing so. It is critical to bolster the normative state, which includes the judiciary and higher-education system, that exists in the SAR even as mechanisms of the prerogative state, as represented by the national security apparatus, are applied. Those who care about defending norms should step up — not limit — people-to-people exchanges and other contacts. Now is not the time to shun Hong Kong. In the aftermath of the 2019 protests, the U.S. and other nations sought to attract immigrants from Hong Kong. Facilitating a brain drain may help the destination country in manpower and skills development, but it does not benefit Hong Kong's people and society. For Washington, finding politically palatable ways to work with Hong Kong is challenging. There are collaborative frameworks already in place that could be strengthened, including those for academic exchange, countering human and drug trafficking, customs facilitation, and programs such as the U.S. Container Security Initiative for safeguarding maritime trade and the China-US agreement to allow a U.S. accounting oversight board to investigate audit firms in Hong Kong and the mainland. One obvious low-hanging fruit: the restoration of the Fulbright educational exchange programs for Hong Kong, which Donald Trump suspended in 2020 along with those for China. In March, three members of the House of Representatives introduced a bill to restart the exchanges for both China and Hong Kong. Congressional staffers familiar with the proposed legislation are skeptical that it will pass, especially with the 2024 elections looming. Joe Biden could be politically "bold" and reinstate the exchanges — even if just for Hong Kong — with one signature. Doing so would be a significant sign of support for the SAR's daily norm defenders.