From USHKPA to HKHRDA and HKAA: The Turnings of U.S.–China Policy and the End of Hong Kong’s Full Autonomy

• Published in: UCLA journal of international law and foreign affairs 2021-07, Vol.25 (2), p.93-156
• Main Authors: Lo, Mao-wei, Wu, Chien-Huei
• Format: Article
• Language: English
• ISSN: 1089-2605; 2169-7833

This Article traces the evolution of U.S. law and policy toward Hong Kong—from the United States–Hong Kong Policy Act of 1992 (USHKPA) to the Hong Kong Human Rights and Democracy Act of 2019 (HKHRDA) and Hong Kong Autonomy Act of 2020 (HKAA). The USHKPA, enacted under the Clinton administration after the Tiananmen massacre but before the handover of Hong Kong, is a product of the United States’ China policy, based on engagement. The USHKPA represented a compromise between Congress and the executive branch and reflected the nature of soft law, implementation of which is largely dependent on Executive discretion. After three decades of a policy of engagement and more than twenty years after China’s resumption of control over Hong Kong, the United States’ China policy has gradually changed, and it saw a significant turn under the Trump administration. In the midst of U.S.–China tension and with bipartisan support from Congress, the HKHRDA and the HKAA strengthen the review, reporting, and sanctions mechanisms for human rights, democracy, and autonomy in Hong Kong. Nonetheless, the Trump administration’s decision to suspend Hong Kong’s preferential treatment under U.S. law, due to the erosion of the high degree of autonomy guaranteed by the Sino-British Joint Declaration and the Hong Kong Basic Law, poses questions about its legality and legitimacy under public international law and World Trade Organization (WTO) law. This Article argues that U.S. sanctions against individuals and entities who undermine Hong Kong’s human rights, democracy, and autonomy can be justified based on international human rights law given the sanctions’ limited scope, special designation, effectiveness, and proportionality. We also argue that the United States’ trade-related measures can be justified under the general exception—public morals—and the national security exception in the General Agreement on Tariffs and Trade (GATT). We observe that the United States’ termination of preferential treatment for Hong Kong based on its separate customs territory status covers four dimensions: rules of origin, tariffs, export control, and currency. We argue that even though there is little guidance from GATT and WTO law, historical and comparative approaches are helpful in evaluating whether Hong Kong still can sustain its WTO membership by virtue of its separate customs territory status.