Prof. Julian Ku yesterday suggested on Lawfare (“Grammar Matters: Did China Really Declare that the Entire Sino-UK Joint Declaration is “Not At All Binding”? Maybe Not.“) that the brouhaha over China’s apparent renunciation of any obligations under the Sino-British Joint Declaration of 1984 might be all due to a mistranslation. According to Prof. Ku, it could be argued that what China said was no longer binding was simply “arrangements made during the transitional period” (i.e., 1984 to 1997), and not necessarily any other part of the Joint Declaration.
Prof. Ku realizes that some readers may accuse him of grasping at straws in an attempt to find some explanation of China’s declaration that does not require concluding that the China simply rejects its international legal obligations. With due respect to Prof. Ku—who I know to be both knowledgeable and no apologist for the Chinese government—I am afraid I have to number myself among those readers.
Let’s start with the Reuters translation of the Ministry of Foreign Affairs statement, which set off all the commentary:
Now Hong Kong has returned to the motherland’s embrace for 20 years, the Sino-British Joint Declaration, as a historical document, no longer has any practical significance, and it is not at all binding for the central government’s management over Hong Kong.
Now let’s look at the official MFA translation:
The Sino-British Joint Declaration (1984) clearly marks the transitional period off from China resuming the exercise of sovereignty over Hong Kong. It’s been 20 years now since Hong Kong’s return to the motherland, and the arrangements during the transitional period prescribed in the Sino-British Joint Declaration are now history and of no practical significance, nor are they binding on the Chinese central government’s administration of the Hong Kong SAR.
Although Prof. Ku helpfully contrasts the Reuters translation of the Ministry of Foreign Affairs statement with the official translation, I think he goes astray in saying that the MFA translation should be treated as authoritative. Perhaps relative to the Reuters translation it should, but certainly not relative to the original Chinese. So let’s look at that and give it a literal (albeit perhaps wooden) translation:
The Sino-British Joint Declaration of 1984 made a clear distinction between [a] China’s resumption of the exercise of sovereignty over Hong Kong and [b] relevant arrangements for the transitional period. It has already been 20 years now since Hong Kong returned to the embrace of the motherland; the Sino-British Joint Declaration, as a historical document, possesses no practical significance of any kind, and has no binding force of any kind with respect to the central government’s administration of the Hong Kong SAR.
We can see right away that the MFA translation is simply wrong. It is clear that the subject of the verbs in the phrases “possesses no practical significance” and “has no binding force” is the Joint Declaration in its entirety, not merely a subpart of it concerned with “arrangements for the transitional period”. Moreover, the context reinforces this point. In a statement about what is binding under the Joint Declaration and what is not, what could be the purpose of the first sentence stating that the Joint Declaration made a clear distinction between pre-handover transitional arrangements on the one hand and the post-handover exercise of sovereignty by China on the other? The answer seems unescapable: the MFA is saying that to the extent it was binding at all, the Joint Declaration was binding only with respect to pre-handover transitional arrangements. And (so the argument goes) as that transition period ended 20 years ago, there are of course no binding obligations left. [Editorial note: I modified this paragraph a bit since the original posting to clarify an ambiguity in my argument.]
I appreciate Prof. Ku’s reluctance to panic and engage in possibly premature China-bashing. But in this case, the original Chinese of the MFA makes clear that his charitable interpretation based on the MFA (mis)translation, already a bit of a stretch as he admits, just won’t fly unless we believe that an official English translation represents the views of the Chinese government more authoritatively than the original Chinese. Regrettably, I have to agree with his closing sentence: that “this statement may turn out to be another watershed moment signaling China’s willingness to turn its back on international law.”
Incidentally, in the title of this blog post I am just following the usage of the piece to which I’m responding; please don’t post indignant comments about how this isn’t really a question of grammar.