Living Law® Hong Kong-200 years of political/legal evolution

Setting the stage

Modern Hong Kong has humble origins, a home to fishing villages and rice and salt farms managed by a few clans which had been there for generations. Its excellent geographic location led it to being designated as one of a handful of ports where trade with Imperial China was permitted. Surrounding hills and deep water ports gave it additional advantages over neighboring trading cities such as Canton (now Guangzhou) and Macau. Today greater Hong Kong is home to over 6 million residents. In each phase of its evolution, laws and regulations set down by its rulers have reflected as well as set the tone for the lifestyle in the region.

International mercantilism

In the early years of European engagement in the region, Imperial China was in a period of transition from the Ming (Han) to Qing (Manchu) dynasties. In an effort to solidify and exhibit control, including over all-important trading ports, the Emperor had a formal system of trading centers established and regulated. The system evolved such that by the mid-18th century a Hong merchant had to assume full responsibility for vessels (including their crews and cargo) entering Canton along with the collection and payment of custom duties to the Emperor. Nine leading Hong merchants created a new body to coordinate trade between westerners and the Qing Empire. The Cohong was essentially a collective monopoly, which produced stability in commercial dealings but stifled competition, leading to complaints by western merchants.

Some European merchants risked breaching diplomatic protocol by complaining directly to the Qing court, which became alarmed about the corruption and risks associated with the previous laissez faire policy and growing power of the Cohong. James Flint of the East India Trading Company was one such proponent. He was rewarded for his efforts by being jailed in Macau for almost 3 years. The Emperor also cracked down on the expansion of Western trade including instituting new legal measures which are summarized in the Supplementary Materials section.

Another source of friction in the early China-European trade arose from the disparity between the demand for Chinese (huge and growing demand) vs. European (limited demand) manufactures. The British attempted to address the imbalance by importing opium produced elsewhere in the Empire (especially India) into the region. Concern over an opium epidemic led the Chinese Emperor to ban the import and trade of opium, though smuggling continued. Tensions came to a head with the Opium Wars, which resulted in the conclusion of the 1842 Treaty of Nanking and Britain’s acquisition of Hong Kong island “in perpetuity.” An annotated version of the Treaty is contained in the Supplementary Materials section. The events proved to be a true turning point for the region, with Britain increasingly calling the shots about the conduct of trade, and other trading nations following.

Learning objective: students will become familiar with the rules of trade as they evolved and were applied locally.

Hong Kong embedded in the British Empire

For roughly the next century, the legal and political situation in Hong Kong reflected that of the Great Britain, as Hong Kong grew into a key international trading and financial center and crossroads between East and West. There was considerable migration to the area, as thousands of Chinese from further inland sought their fortune in the growing hub. Some ended up seeking opportunities even further afield, in other parts of the growing British Empire as well as in the United States. Many laborers were contractually bound to situations of indentured servitude abroad. There is more information on this practice, which became known as the “coolie” (generally considered a derogatory term) trade in the Supplementary Information section.

While Macau declined in significance along with the gradual retraction of the Portuguese Empire, Hong Kong’s role expanded in parallel with growth of the British Empire. By the start of the 20th century, Great Britain had colonies in Asia, much of Africa, the Caribbean and South America. Hong Kong, despite its compact size, represented the primary gateway for foreign activities in and with China. To support that role, Hong Kong’s legal system developed to provide the necessary legal and administrative framework for economic and other cooperation in the region. In 1898 Britain leased a large area beyond Kowloon (designated the “New Territories”) for 99 years in order to provide room for further expansion to the bustling hub Hong Kong had become. An annotated version of the agreement is contained in the Supplementary Materials section. The territory which collectively had come under British control as a result of multiple treaties became the subject of the 1997 handover.

Learning objective: students will gain an understanding of the legal/diplomatic basis for European trade with and involvement in Imperial China, including learning about some historical consequences of global trade.

20th century evolution

This development of Hong Kong continued unabated until the British were ousted by Japanese forces during World War Two. The period only lasted four years and the Japanese occupiers essentially left most institutions continue to operate as they had been. But for many-inside and outside Hong Kong- the occupation period called into question the inevitability of continued British rule. The postwar period of European de-colonization witnessed a dramatic shift in the direction of more autonomy and, in many cases, outright independence. Several new countries emerged in Africa and Southeast Asia. Not to mention the independent nations of India and Pakistan. Though that did not happen for Hong Kong at this point time, events were in motion which would lead to the end of British control of Hong Kong within a few decades.

In the Resources section there is also a video dealing with one outgrowth of Hong Kong’s postwar economic boom, a large population of foreign workers.

Learning objective: students will become familiar with the turning points in Hong Kong's modern history that led to its eventual return to China. This includes coverage of Hong Kong's cosmopolitan and multicultural society.

The Cold War placed Hong Kong in a precarious situation given its geographic position and the (regained) rule by the British. The impact of the Korean War was felt throughout the region, and there were fears that Communist China might attempt to take back Hong Kong by force. Economic self-interest and strategic priorities prevented an outright military conflict between Britain and China, leaving Hong Kong on the trajectory laid down in the 19th century treaties. The period saw thousands of migrants leaving the PRoC and settling in an increasingly overcrowded Hong Kong. These and other arrivals helped fuel the prosperity which Hong Kong enjoyed since has enjoyed since.

To get a feel for this period please enjoy the archival material ("Hong Kong Island") on the situation on both sides of the "Bamboo Curtain" which separated Hong Kong from the rest of mainland China.

Late 20th century

The course of the Cold War left its mark on the future direction of Hong Kong. As the term of the lease of “Extended” Hong Kong approached its end, the world looked quite different from at the start of the century. Many Western nations had recognized the People’s Republic of China at the expense of the Republic of China (Taiwan). Former European Empires had given way to a multitude of independent nations.

In the 1980s the British Government under Margaret Thatcher began negotiations for the return of Hong Kong to China. Though a portion of Hong Kong had been ceded to Britain “in perpetuity”, given the circumstances of this “cession”, this had always been a bone of contention between the UK and both Imperial and post-Imperial China. The 1984 Joint Declaration between the Chinese and British governments thus aimed to regulate the return of the entirety of Hong Kong to China. It also aimed to preserve certain unique aspects of modern Hong Kong. At midnight on June 30th, 1997, Hong Kong became a so-called Special Administrative Region (SAR) of the People’s Republic of China.

Learning objective: students will learn about the international agreements which aimed to chart a course for the people of Hong Kong after its return to China.

Basic Law Basics

The details of the administration of the Hong Kong SAR are set out in the Basic Law. The Basic Law is a form of Constitution for Hong Kong and sets out a roadmap for the administration and operation of governmental institutions and policies for a 50-year period which began on July 1, 1997. The objective was to preserve the special status of Hong Kong within China, including a high degree of autonomy. How the provisions of the Basic Law are lived in practice has defined the relations between Hong Kong and the central government in Beijing since the Handover.

Learning objective: students will learn the main tenets of the international agreements and have an opportunity to explore specific issues in independent self-study.

Realities and challenges of transition and integration

It is impossible to anticipate every issue in regulating legal relations between groups. By necessity a level of generality is necessary in wording if agreement is ever to be reached. That was true for the early treaties which led to the development of Hong Kong as a British colony. It was also true for the drafting of the Joint Declaration and resulting Basic law.

The Basic Law had to grapple with a number of practical issues, ranging from political authority (e.g. appointment vs. election) to economic affairs to the language of administration. The contents of the Basic Law had to reflect the legacy of a century and a half of British rule in Hong Kong. It also had to lay the groundwork for the ensuing half century of integration into the People’s Republic of China. Hardly an easy task.

Learning objective: by this point in the course students should be in a position to form a view on the essential question: how does the Basic Law seem to be faring?

Half way through

We are approaching the halfway point of the 50-year transition period for Hong Kong. From the beginning it was unclear exactly what would or should happen in 2047. Hopes were that things would work themselves out without much friction. Yet the reality on the ground has painted a different picture in the past few years. The application of the Basic Law and administration of Hong Kong as an SAR have triggered widespread protests in specific instances, including the so-called Umbrella Revolution. Many Hong Kong residents feel the central government in Beijing is trying to fast forward 2047 to the present. On the other hand, is a “Big Bang” approach at the end of the transition period realistic, or even desirable? Is autonomy in the eye of the beholder? What role should the existing laws and agreements have in all of this?

Learning objective: With the completion of this course, and a review of additional resources, students should be in a better position to address some of the questions above.