SIPR Dhanani

Abstract

In June 2020, the People’s Republic of China (PRC) passed a national security bill in Hong Kong that stripped the people of Hong Kong of the fundamental freedoms guaranteed to them under the Sino-British Joint Declaration treaty. In effect, the bill also prematurely marked the end of the “One Country, Two Systems” governance framework between the PRC and Hong Kong. Although the people of Hong Kong have taken to the streets to protest the PRC’s actions and reclaim their rights to press, speech, and assembly, one right that has received relatively little attention is the right to one’s own property. By many measures, property is inextricably tied to one’s notion of autonomy. But as the PRC’s heavy-handed tactics undermine the very fabric of Hong Kong society and the Sino-British Declaration specifically, the question of what impact the end of One Country, Two Systems will have on Hong Kong’s property law—and thereby the autonomy of the people of Hong Kong—remains an unanswered question which this paper will attempt to uncover.

I. Introduction

On the morning of June 9, 2019, Hong Kongers flooded the streets to protest the pernicious erosion of their fundamental rights and freedoms by the People’s Republic of China (PRC), including the right to a democratic form of government; the right to speak freely and to protest openly; and perhaps most importantly, the right to due process in a territory historically governed by the rule of law.[1] These rights, though typical of Western democracies, were not unfamiliar to the people of Hong Kong. They were stitched into the very fabric of the territory and codified in the Sino-British Joint Declaration[2]—the 1997 treaty signed by the United Kingdom and the PRC to mark the official end of the UK’s 99-year leasehold of Hong Kong and its handover to the PRC.[3]

The Sino-British Joint Declaration set up a new framework of governance between Hong Kong and China, known as One Country, Two Systems. This framework allowed Hong Kong to continue to enjoy its distinct political and economic rights for fifty years until July 1, 2047 when the PRC would have full authority to integrate Hong Kong into the Mainland.[4] The details of this framework were codified in a document written by the PRC known as the Basic Law which became Hong Kong’s de facto constitution. Under the Basic Law, the rights to press, speech, and assembly were explicit as well.[5]

But early last year, pro-democracy Hong Kongers who had so fervently taken to the streets to protest the erosion of their freedoms for nearly nine months were forced to retreat back into their homes. The rapid spread of COVID-19 quashed any public demonstrations for several months. Chinese leader Xi Jinping took advantage of a lull in the protests and introduced a national security bill, the “Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region,” to the National People’s Congress (NPC), the Mainland’s legislative body. The bill was a nebulous amalgamation of China’s national security interests in Hong Kong, which included a ban on secession, subversion of state power, terrorism, and foreign intervention, and it also gave the Mainland authority to deploy its security agencies in the island region.[6] In effect, the bill prematurely marked the end of the One Country, Two Systems governance framework between the PRC and Hong Kong. On May 28, 2020, the proposal was approved by the NPC near-unanimously and passed into law on June 30. The United States did not skip a beat, declaring that the end of Hong Kong’s autonomy had come.[7]

Although the people of Hong Kong have once again taken to the streets to protest the PRC’s heavy-handed tactics and to reclaim the rights promised to them under both the Sino-British Joint Declaration and in the Basic Law, one right that has received relatively little attention is the right to one’s own property. Hong Kong is, by many measures, one of the most important property markets in the world. The average cost per square foot of an apartment in Hong Kong was roughly $2,000 in 2018, making it the most expensive real estate market in the world.[8] Hong Kong is also a global financial center. Nearly 4,000 multinational companies base their Asia operations in the territory.[9] As a result, the future of Hong Kong’s system of property rights—especially after 2047 when One Country, Two Systems nominally ends—will affect not only Hong Kongers and Hong Kong-owned businesses. International companies and the global residential and commercial property markets will also feel the effects of any changes to Hong Kong’s long-standing property regime.

To better understand the future of Hong Kong property law after 2047, Part II of this paper will first analyze the rights conferred onto Hong Kong property owners through a “bundle of sticks” analysis and compare their rights against the property rights conferred onto landowners in the United States and onto land-use owners in the PRC. Part III will then present a legal analysis of the Basic Law, as well as a discussion on the economic incentives that the PRC faces to preserve the One Country, Two Systems framework even after 2047, to determine the future of Hong Kong property law. Part IV will present a geopolitical analysis of the realities in Hong Kong and discuss the pessimistic view of its future before concluding with final thoughts on why the future of Hong Kong property law could change in a moment’s time.

II. “Bundle of Sticks:” A Comparative Analysis Between American and Hong Kong Property Rights

Hong Kong’s system of property rights differs from the Western, and especially American, system of property rights in important ways. In the United States, property rights are likened to a bundle of sticks, each stick conferring a specific right on the owner, including the right to possess property, the right to transfer property, the right to use property, the right to enjoy the fruits or profits from one’s property, the right to destroy property, and perhaps most importantly, the right to exclude others from one’s own property.[10] This right to exclude is likely the most valued property right in the United States in large part because it is intimately and inextricably tied with people’s notions of autonomy.[11] Most rights in the bundle of sticks, such as the right to use property and the right to destroy property, are also derived from the right to exclude others from one’s own property. Americans’ notion of the right to exclude is so fundamental that it is integrated into the U.S. Constitution’s Bill of Rights under the Takings Clause of the Fifth Amendment.[12]

In Hong Kong, however, property law is derived from Chinese national law where the right to exclude is neither explicitly guaranteed nor generally understood to be foundational.[13] Instead, private ownership of land in Mainland China is prohibited. Individuals can, however, obtain land-use rights from the state for a set term limit.[14] By doing so, the bundle of rights conferred onto land-use owners is “usufructuary,” whereby land-use rights holders can “legally possess, use, and benefit from property owned by another,” or the PRC in this case.[15] Chinese scholars argue that although these rights do not map onto those typical in the United States, they are bundles of sticks unique to Chinese culture and property norms.[16]

In parallel, virtually all land in Hong Kong is nominally owned by the Chinese government and managed and leased by the Government of Hong Kong for set term limits of fifty, seventy-five, or ninety-nine years.[17] As in Mainland China, the right to exclude is not conferred onto private parties, but instead rests with the government. Exclusion, therefore, is not foundational in the same way among Hong Kongers as it is among Americans. Instead, under Article 105 of the Basic Law, the people of Hong Kong have “the right … to the acquisition, use, disposal and inheritance of property and … to compensation for lawful deprivation of their property.”[18] Hong Kong legal scholar Danny Gittings contends that the property right most valued among Hong Kongers and the Mainland Chinese alike is their right to acquire property, noting half-jokingly that in modern-day Chinese culture, “a man is not worthy of marriage if he does not have his own flat.”[19] And although Hong Kong and Chinese property laws do differ in their respective land renewal policies—the PRC’s renewal of land-use rights being less certain than Hong Kong’s renewal of land-leases[20]—over the last thirty years, the PRC’s land-use system and Hong Kong’s land-lease system have come to approximate one another.[21] So notwithstanding similarities in their capitalist systems and way of life, Hong Kong property law and U.S. property law differ in significant ways.[22]

Even so, Hong Kong has historically been an attractive spot for foreign investment. As opposed to the PRC’s system of one-party rule, Hong Kong’s approximation to a Western democratic nation means that property rights operate within a government system that upholds the rule of law and governs under a transparent justice system. Foreign investors seeking to grow their businesses by tapping into the Asian market are more likely to set up their companies in a community that protects their freedoms and values their rights.[23] But as the PRC continues to curb a number of rights guaranteed under the Sino-British Joint Declaration and in the Basic Law, a second order consequence of its actions likely will include a depleted demand for land leases in Hong Kong by both foreign corporations and individuals. As 2047 looms on the horizon, it is worth exploring whether the leases issued by the Hong Kong government after the Sino-British Joint Declaration was signed will be upheld after 2047.

III. Legal Analysis of the Basic Law and the Optimistic Views on the Future of Hong Kong Property Law After 2047

To forecast what Hong Kong’s property laws will look like after 2047, one must analyze the text of the Basic Law. The primary source of Hong Kong property law is Article 7, which states:

The land and natural resources within the Hong Kong Special Administrative Region shall be State property. The Government of the Hong Kong Special Administrative Region shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region.

As a general matter, Article 7 reinforces the notion that land within Hong Kong’s jurisdiction belongs to the PRC and catalogs the authority of the Hong Kong government to manage, develop, and lease this land to individuals. It does not, however, shed any light on property rights post-2047 when One Country, Two Systems ends. This is of notable issue today for two reasons. First, most fifty-year land leases issued after the 1997 Handover are set to expire in 2047 and are void of a renewable clause.[24] It is unclear, therefore, whether Hong Kongers will be able to lease their property, either from the Hong Kong government or the PRC, after 2047. Second, for the land leases that have expired since the Handover, the Hong Kong Lands Department has used its own discretion to extend leases for a term of fifty years, citing Article 7 as authority to exercise its power to “manage … lease or grant [property].”[25] But by doing so, the public is lulled into a false sense of security of owning their property forever, even though Article 7 does not make clear if these leases will be upheld by the PRC after 2047.[26]

Without clear guidelines in Article 7, Hong Kong politicians and academics alike note that the Basic Law ought to be read as a whole to make sense of the fate of Hong Kong property law post-2047.[27] The oft-cited dispositive authority on this matter is Article 123 of the Basic Law, which states:

Where leases of land without a right of renewal expire after the establishment of the Hong Kong Special Administrative Region, they shall be dealt with in accordance with laws and policies formulated by the Region on its own.

Like Article 7, Article 123 makes no mention of Hong Kong property rights after 2047. This omission, however, is noteworthy because the neighboring article, Article 121, states explicitly that land leases that were granted by British authorities before the signing of the Sino-British Joint Declaration in 1997 will expire on June 30, 2047.[28] If the drafters intended Hong Kong property rights conferred after the Handover to expire on a certain date, they would have specified it like they did in Article 121. No less, Article 123 also reinforces the Hong Kong government’s discretion in renewing land “in accordance with [its own] laws and policies.”[29] Taken together, scholars argue that the Hong Kong government has authority to renew leases beyond 2047, both because there is no explicit limitation in their authority to do so, and also because this discretion is in accordance with the laws and policies designed by the Hong Kong Lands Department.[30]

But former Hong Kong legislative council member and pro-democratic figure, Margaret Ng, is unconvinced. Many like her point to Article 5 of the Basic Law to add yet another layer of complexity, noting that Hong Kong’s economic and political structure are time bound by fifty years with an end date of June 30, 2047.[31] The full text of Article 5 is as follows:

The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.

If Hong Kong’s “capitalist system and way of life” has a fifty-year time limit, it might be thought that the same limitation would apply to the lifespan of the Hong Kong government as well. Any leases granted by this government for a term expiring after June 30, 2047 would, in effect, be ineffective. But scholars are skeptical of this outcome and offer two compelling reasons why Ng’s analysis is overstated.

First, Danny Gittings offers a textual analysis. He posits that the comma separating the two clauses in Article 5 confines the time period of fifty years to the second clause––“the previous capitalist system and way of life shall remain unchanged.”[32] The first clause guaranteeing that “the socialist system and policies shall not be practiced in the Hong Kong Special Administrative Region,” is not limited by such time constraints.[33] Taken together, Gittings argues that Article 5 was never intended to put an end to One Country, Two Systems; the fifty-year time-frame specified only the minimum, not the maximum, amount of time that Hong Kong could retain its unique capitalist system and way of life without the Mainland making any changes.[34] Indeed, even Deng Xiaoping, China’s leader at the time the Joint Declaration was signed and the Basic Law was drafted, noted that, “50 years is only a vivid way of putting it. Even after 50 years our policy will not change either.”[35] Under this analysis, one could expect that land-leases set to expire after 2047 will likely retain their legally binding force.

Mainland Chinese investors’ demand for commercial real estate in Hong Kong seems to correspond with this analysis as well. In August alone, Mainland Chinese investors “snapped up” $516 million worth of commercial real estate in Hong Kong after prices plummeted nearly thirty percent since anti-government protests broke out in 2019.[36] If their investment activity is any indication of the future of the Hong Kong property market and the One Country, Two Systems framework more broadly, then there is an argument to be made that investors expect their leases to be upheld even after 2047.[37] Moreover, investments in commercial real estate by Mainland investors also serve to highlight their confidence in Hong Kong, the Hong Kong economy, and perhaps most importantly, the One Country, Two Systems framework over the longer term as well.

Second, on prudential grounds, it may not be in China’s economic interest to dissolve the One Country, Two Systems framework—and therefore Hong Kong’s “capitalist system and way of life”—even after 2047. A year following the Handover, Hong Kong legal scholar Alice Lee speculated that the first half of the twenty-first century would be marked by “tremendous economic growth” for China, and that maintaining Hong Kong’s capitalist system well beyond 2047 would be necessary to sustain this growth.[38] Indeed, from 1997 to 2017, China’s gross domestic product (GDP) as measured in current U.S. dollars has grown over 1,000 percent.[39]

In the earliest years of this growth, Hong Kong made up about twenty percent of China’s total GDP; today, its share of Chinese GDP has dwindled to about two percent.[40] Still, Hong Kong remains important to the PRC for a number of reasons. Its status as a tariff-free port has allowed China to capitalize off of Hong Kong’s centrality in global trade.[41] Moreover, strict currency controls in Mainland China have curbed the ability of Mainland Chinese companies to raise money from investors inside their own borders.[42] However, Hong Kong’s longstanding status as a global trade hub, its strict regulatory filing requirements, and its tradition of enforcing contracts has drawn a large number of foreign investors to its shores and has allowed Mainland Chinese companies to readily access international capital from their backyard.[43] 

In sum, Hong Kong’s exemption from the Mainland’s strict economic regulations has allowed Hong Kong, and by extension China, to prosper. In moments where China has undercut Hong Kong’s autonomy and unique status, foreign investors have shifted their banking and financial business away from Hong Kong and towards Hong Kong’s long-standing financial hub rival in the region, Singapore.[44] As just one point of evidence, following last year’s anti-government protests in Hong Kong, investors moved nearly $4 billion of their Hong Kong deposits to Singapore.[45] And in the property market space, transaction volumes for industrial, office, and retail properties plummeted nearly fifty percent in 2019, Hong Kong’s lowest level since at least 1996.[46] Peter Churchouse of Hong Kong’s Portwood Capital contends that as China continues to “creep” into Hong Kong and erodes Hong Kong’s autonomy, foreign investors will be forced to continue relocating their regional headquarters from Hong Kong to other parts of Asia.[47] Put another way, dismantling the One Country, Two Systems framework will hurt the Chinese economy in more ways than one.[48]

IV. The Discouraging Reality of the Future of Hong Kong Property Law After 2047

Even though it might be in China’s best economic interest to preserve the One Country, Two Systems regime, and even though Danny Gittings assures us through his textual analysis that there is little reason to believe that there is a legal foundation for the system to be changed, it is important to underline that these are just speculations. Alice Lee’s conclusion from over twenty years ago should not be lost: “If the intention had been that Hong Kong would be allowed to maintain its capitalist system indefinitely or for a period longer than fifty years, a provision to the same effect could easily have been inserted into the Basic Law for the sake of clarity.”[49] But no such clarification exists. The future of One Country, Two Systems—and by extension, Hong Kong property law—is at best uncertain. This uncertainty is perhaps most starkly reflected in housing prices, which are dependent on the “continuity of land ownership in the far future.”[50] Notably, land leases set to expire on June 30, 2047 suffer from a fourteen percent discount rate relative to those leases that are also set to expire on June 30, 2047 but that are protected by a fifty-year extension period.[51] The data underscores that the largest asset class on households’ balance sheet is losing its value as residents feel more uncertain about Hong Kong’s future. 

But efforts to remedy this uncertainty can still be made. Perhaps the most obvious solution would be for Beijing to insert clarity in the legal text itself, either by following the procedures laid out in Article 158 or Article 159 of the Basic Law. Of these two options, however, the latter is the sounder strategy for the people of Hong Kong.

Article 158 vests the NPC’s Standing Committee with the power to interpret the Basic Law. The Standing Committee, for its part, delegates this power to Hong Kong courts on matters related to adjudication. However, when the law concerns affairs that are the responsibility of the PRC—such as the future of Hong Kong property law in 2047 when One Country, Two Systems nominally comes to a close—Hong Kong courts must seek the NPC Standing Committee’s interpretation of the relevant provision through the Court of Final Appeal.[52]

Article 158 is the path of least resistance for Beijing to clarify the future of Hong Kong property rights by interpreting the relevant text of the Basic Law. But this option will not entirely alleviate the uncertainty that exists because the NPC Standing Committee has read Article 158 as conferring it with plenary power “to issue an interpretation any time, with or without reference from Hong Kong institutions, and on any provision of the Basic Law.”[53] With such plenary power, the NPC Standing Committee could conceivably change its interpretation in the future, leaving Hong Kongers without the legally binding assuredness that their property rights will be upheld after 2047.

Instead, the more secure of the two options for the people of Hong Kong would be for Beijing to codify its clarification of the Basic Law through an amendment, as stipulated under Article 159 of the Basic Law. Under Article 159, the ultimate power to pass amendments to the Basic Law rests with the NPC. But the NPC Standing Committee, the PRC’s chief administrative authority known as the State Council, or the Hong Kong government[54] can separately propose bills for amendments to the Basic Law as well. The principal caveat is that no amendment can “contravene the established basic policies of the People’s Republic of China regarding Hong Kong.”[55] Put another way, amendments “must foster Hong Kong’s development[,] … conform to the principles of ‘One China, Two Systems[,]’ and favor the territory’s prosperity and stability.”[56] In the case of property rights, adding clarifying language to the Basic Law would strengthen the Hong Kong government’s power to continue leasing land and provide a sense of security to lessors that leases will be upheld after 2047. Perhaps more importantly though, amending the Basic Law to clarify whether One Country, Two Systems will exist after 2047 will further alleviate the guessing game among Hong Kongers and investors beyond its shores as to whether Hong Kong’s capitalist system and unique way of life will continue to exist.

If the national security bill that was passed by the NPC in June 2020 and codified in Annex III of the Basic Law is any indication of the significance of Article 159, however, then the Article arguably holds little authority today. Indeed, although the bill facially targets separatism, subversion, terrorism, and collusion with foreign forces, the provisions are so broad that Beijing retains sweeping powers to limit dissent and erode the civil liberties of the people of Hong Kong[57]—liberties that were promised to them under the Sino-British Joint Declaration and codified in the Basic Law, including freedom of speech and assembly, freedom of the press, and an independent judiciary. Ostensibly, the bill has prematurely ended the One Country, Two Systems framework by “contravene[ing] the established basic policies of the People’s Republic of China regarding Hong Kong.”[58]

V. Conclusion

So what becomes of Hong Kong property law? Even in the most extreme case where One Country, Two Systems would cease to exist and the Hong Kong government would dissolve, legal scholars have speculated that the “responsibility for any unexpired portion of … land leases would simply pass to the body that authorized the Hong Kong … [g]overnment to issue the leases, namely the Chinese central government.”[59] But leaving these land leases in the hands of what has proven to be a mercurial Mainland central government that has already passed legislation to subvert the civil liberties of Hong Kongers does not guarantee the protection of Hong Kong property rights.

Without clarity and certainty in the legal text itself, and without confidence that amendments to the Basic Law will be bound by the rules codified in Article 159, perhaps the only way to discern the future of Hong Kong property law post-2047 is to wait and see what comes of it on July 1, 2047, even if this wait-and-see approach undercuts the very essence of what Hong Kong was supposed to be when the Sino-British Joint Declaration was signed: a rule-based society.