From US-HKPA, HKHRDA TO HKAA : The Turnings of the US' China Policy and the End of Hong Kong's Full Autonomy

This paper traces the evolution of the US’s laws and policies toward Hong Kong running through the United States-Hong Kong Policy Act (US-HKPA), Hong Kong Human Rights and Democracy Act (HKHRDA) to Hong Kong Autonomy Act (HKAA). The US-HKPA, enacted under the Clinton Administration, after the Tiananmen massacre but before the handover of Hong Kong, is a product of US’s China policy based on engagement policy. It represents a compromise between the Congress and Executive and reflects soft-law nature, of which the implementation is largely dependent on Executive discretion. After three decades of engagement polices and more than twenties of China's resumption of sovereignty over Hong Kong, the US' China policy gradually changes and has seen a significant turn under the Trump Administration. In the midst of US-China tension and with the bipartisan support from the Congress, the HKHRDA and HKAA strengthen the review, reporting and sanctioning mechanism on the human rights, democracy and autonomy in Hong Kong. Nonetheless, the Trump Administration decision to suspend the preferential treatment of Hong Kong under the US laws on the ground of the erosion of high degree of autonomy guaranteed by the Sino-British Joint Declaration and HKBL poses questions about legality and legitimacy under public international law and WTO law. We argue that the US's sanctions against individuals and entities in undermining Hong Kong human rights, democracy and autonomy can be justified based on international human rights law given its limited scope, special designation and effectiveness and proportionality. We also argue that the trade related measures can be justified under general exception (public morals) and national security exception. We observe that the termination of preferential treatment based on separate customs territory status may cover four dimensions: rule of origin, tariffs, export control and currency. We submit that there is little guidance from GATT/WTO law on 'full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement', historical and comparison approaches may be adopted in appreciating whether Hong Kong still enjoys full autonomy in sustaining its WTO membership by virtue of separate customs territory status