U.S. National Security Export 

Controls and Hong Kong: A 

Case Study in the Unhappy 

Death of a Happy Teleology 
Control and International Security Papers Volume I, Number 17 I August 26, 2020 

U.S. National Security Export Controls and Hong Kong: A Case Study in the 

Unhappy Death of a Happy Teleology 

U.S. National Security Export Controls and Hong 

Kong: A Case Study in the Unhappy Death of a 

Happy Teleology 

by Christopher A. Ford1 

This addition to the ACIS Papers series looks at recent changes in United 

States national security export controls as they apply to Hong Kong, and as 

U.S. officials have readjusted these controls in response to changes in that 

territory and the degree of control over it exercised by the People's Republic of 

China. 

The recent history of U.S. national security export 

control policy towards the troubled territory of Hong Kong 

is in many ways a very specific one that reflects American 

responses to developments there, beginning with the 

brutal suppression of pro-democracy protests that had 

arisen in response to proposed changes to the territory's 

extradition law, and culminating in the imposition upon 

Hong Kong of a sweeping new, authoritarian "national 

security law" by the People's Republic of China (PRC) in 

May 2020. In another sense, however, the story of the 

United States' changing export control policies vis-a-vis 

Hong Kong represents merely one case study of a much 

broader phenomenon: that of the Western policy 

community's struggle to adapt to the geopolitical death 

throes of the post-Cold War era and the optimistic 

neoliberal teleology associated with it. 

I. The End of an Era 

Many of the most significant debates over U.S. foreign 

and national security policy in recent years have grown 

out of a single problem - the fact that the post-Cold War 

world has not turned out to be as enduringly benign as 

Western policy elites expected and desired it to be. Far 

from continuing on a presumed trajectory toward 

increased global integration, diminishing international 

tensions, and norms of democratic governance, in fact, the 

international security environment has been steadily 

deteriorating since the mid-2000s, bankwpting the 

teleology of neoliberal convergence that had been 

internalized by the Western policy community during the 

1990s, and leading to anguished debates about how to 

respond to events. 

Much of the bitterness of contemporary foreign policy 

debate can be traced to the psychic traumas of this 

adjustment, for cherished illusions die hard. Many of the 

papers in this Arms Control and International Serndty 

.series. - which have addressed such things as how to 

respond to Chinese and Russian geopolitical revisionism, 

Beijing's technologically-facilitated authoritarianism, 

Russian arms control violations, Iran's proliferation 

1 Dr. Ford serves as U.S. Assistant Secretary of State for International Security and Nonproliferation and is additionally performing the 

duties of the Under Secretary for Arms Control and International Security . He previously served as Special Assistant to the President and 

Senior Director for Weapons of Mass Destruction and Counterproliferation on the U.S. National Security Council staff . 
Arms Control and International Security Papers Volume I, Number 17 I August 26, 2020 

U.S. National Security Export Controls and Hong Kong: A Case Study in the 

Unhappy Death of a Happy Teleology 

threats and drive for regional hegemony in the Middle 

East, Russian and Chinese militarization ofouter space, 

expanding Chinese and Russian nuclear arsenals, and 

outdated arms control and disarmament discourses -

have revolved around suggesting new and better answers 

to foreign policy and national security problems created 

by the failure of the post-Cold War era to live up to 

expectations. (For this reason, they should ideally be read 

together, as a sort of strategic oeuvre.) 

Such proposals still remain controversial in some 

quarters, however, for despite all that has been learned, a 

firm policy consensus has not yet fully crystallized around 

new approaches, and there are still those who cling to 

agendas and aspirations dangerously predicated upon the 

world being very different from what it has actually shown 

itself to be. If given the chance, such bitter-enders may yet 

- to the delight of our strategic competitors - try to swing 

U.S. policy back toward formulas grounded in the dreams 

of the 1990s. Nevertheless, it seems to be just a question 

of time before the entire Western policy community 

recognizes how tragically far the world now is from those 

days. The West's collective post-Cold War dreams of a 

steadily more benign and cooperative world community 

are dying, and the policy prescriptions to which this 

dreaming gave rise must perforce die with them. And it is 

through this prism that one can see in the story of evolving 

U.S. national security export control policy towards Hong 

Kong an example of a broader trend. 

II. Transition and the Persistence of Hope in 

U.S. Hong Kong Policy 

Hong Kong's history, of course, is well known. It was 

ceded to the United Kingdom in perpetuity by China's 

Qing Dynasty in 1842 under the Treaty of Nanking at the 

end of the Opium War, thereby becoming a Crown Colony. 

The island of Kowloon was added to it in 1860 at the end of 

the Second Opium War. Fatefully for the people of Hong 

Kong, however - who despite being ruled by a British 

Governor responsible to London, came to enjoy a 

considerable degree of democratic self-government and 

extensive civil liberties - the area known as the New 

Territories was not given to the UK in perpetuity, being 

instead leased from China under a 99-year lease in 1898. 

It was that 99-year lease, in a sense, that proved fatal 

for the prospects of democratic autonomy in Hong Kong, 

for as its 1997 expiration date loomed, it was very clear 

both that Beijing would not compromise at all on its desire 

to take back all of Hong Kong, and that the Crown Colony 

could not survive without the New Territories - which were 

the largest part of Hong Kong, with what was by then a 

large population and a growing industrial base. (The New 

Territories lease, therefore, was the leverage point that 

forced Britain to turn over to the PRC even the sovereign 

British territory of Hong Kong Island and Kowloon.2) This 

was made very dear to Prime Minister Margaret Thatcher 

when she visited Beijing in 1982, after which negotiations 

began for handing over the full territory- as indeed was 

subsequently set forth in the Sino-British Joint Declaration 

of December 1984. That handover duly took place on July 

1, 1997. 

All was not immediately lost for democratic autonomy 

and civil liberties in Hong Kong, however, for the Joint 

Declaration - a document ratified by exchange of 

instruments of ratification between the PRC and the UK on 

May 27, 1985, and that was registered in accordance with 

Article 102 of the United Nations Charter on June 12, 1985 

- was an international treaty that both the PRC itself and 

the High Court of the Hong Kong Special Administrative 

Region (HKSAR) have admitted is legally binding.3 Under 

its legally-binding terms, the "the provisions of the [1966] 

International Covenant on Civil and Political Rights and 

the [1966] International Covenant on Economic, Social 

and Cultural Rights as applied to Hong Kong shall remain 

in force," and the PRC made a number of further promises 

about protecting rights and freedoms in Hong Kong. 

These include that the HKSAR 

"shall maintain the rights and freedoms as provided 

for by the laws previously in force in Hong Kong, 

including freedom of the person, of speech, of the 

press, of assembly, of association, to form and join 

2 As early as 1965, in fact, British officials in the Colonial Office had begun to worry that the PRC might use force against the Colony if the 

people of Hong Kong were given democratic self-determination. See "Position of British Dependent Territories in relation to International 

Agreements on Human Rights" (confidential Colonial Office paper, undated but 1965) para 30: PRO CO 1030/1704, quoted in Jamie 

Trinidad, Self-Determination in Disputed Colonial Territories (Cambridge : Cambridge University Press, 2008), at 110. 

3 See, e.g., Cheung Lai Wah v. Director of Immigration, Decision of April 2, 1998, at para. 77, CACV202/1997, Chan, CJHC; HKSAR v. Ma WaiKwan et al., Judgment of July 29, 1997, at para. 206, Chan, CJ. 

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Arms Control and International Security Papers Volume I, Number 17 I August 26, 2020 

U.S. National Security Export Controls and Hong Kong: A Case Study in the 

Unhappy Death of a Happy Teleology 

trade unions, of correspondence, of travel, of 

movement, of strike, of demonstration, of choice of 

occupation, of academic research, of belief, 

inviolability of the home, the freedom to marry and 

the right to raise a family freely" 

The principles set out by the Joint Declaration, moreover, 

were to be made part of the Basic Law of the H KSAR and -

as that Declaration specified - "will remain unchanged for 

so years." The PRC was legally required by its treaty 

obligations, in other words, to protect the rights and 

freedoms of the people of Hong Kong until at least 2047. 

This is the key to understanding U.S. national security 

export control policy vis-a-vis Hong Kong, for on the 

strength of Beijing's solemn treaty obligations - and no 

doubt also the assumption then prevailing in the West that 

"engagement with China wo11ld prod11ce a future with 

bright promise of comity and cooperation," and that 

economic development would in time turn the PRC into a 

peaceable, liberal democracy- the United States chose to 

continue to treat PRC-controlled Hong Kong after 1997 as 

if it still were a British colony. 

Under the Hong Kong Policy Act (HKPA) of 1992 

(Public Law 102-383), the United States continued a range 

of policies it had applied to Hong Kong during the period 

in which the territory was under the administration of the 

United Kingdom. To be sure, the HKPA contained a 

safeguard provision that "[a]uthorize[d] the President, 

upon determining that Hong Kong is not sufficiently 

autonomous to justify treatment under a U.S. law different 

from that accorded China, to suspend such application of 

the law." (The HKPA was amended in 2019 to require 

annual certification from the Secretary of State regarding 

whether Hong Kong continues to warrant the prehandover treatment that the United States has accorded it 

under specified treaties, international agreements, and 

U.S. laws.) Until that happened, however, U.S. policy 

toward the HKSAR would remain very different, and much 

more permissive, than U.S. policy toward the rest of the 

PRC. 

Ill. Export Controls and Hong Kong 

Remarkably, this same approach was followed in 

matters of U.S. national security export control policy, 

which continued to treat Hong Kong after it passed under 

PRC control in 1997 just as it had done when the territory 

belonged to the United Kingdom. Despite Beijing now 

controlling Hong Kong, for instance, U.S. sanctions that 

had long applied to the PRC in response to the Chinese 

Communist Party's massacre of students and workers 

engaging in pro-democracy demonstrations in Iiananmen 

Square in June 1989 did not apply to Hong Kong, which 

made it possible for U.S. entities to continue exporting 

defense articles and Commerce-controlled munitions and 

law enforcement equipment to Hong Kong. 

Hong Kong also continued to be given special 

Commerce Department licensing exceptions allowing 

certain sensitive items covered by the Wassenaar 

Arrangement export control regime to be exported there 

in ways not permitted for many other jurisdictions - and 

certainly not for the PRC. (For Commerce licensing 

purposes, Hong Kong was included in "Country Group B," 

a list of those not deemed to represent a national security 

concern. By contrast, the PRC is in "Country Group D," 

along with high-threat countries such as Russia and 

Venezuela.) Some less sensitive but still Wassenaarcontrolled items could be exported to Hong Kong without 

any license requirement at all - in other words, without 

the knowledge or involvement of U.S. national security 

export control officials. 

Among the Commerce license exceptions given to 

Hong Kong even after it passed into the PRC's control in 

1997 was one known as "Additional Permissive Reexports" 

(APR), which eliminated license requirements for the reexport of U.S.-origin items and technologies controlled by 

the Wassenaar Arrangement to countries of national 

security concern (including to the PRC). Hong Kong also 

benefited from the license exception for "Civil End Users" 

(CIV), which meant that it could freely re-export 

Wassenaar-controlled technologies to countries of 

national security concern (such as the PRC) as long as such 

re-exports were to "civilian" rather than "military" endusers. The "Strategic Trade Authorization" exemption also 

allowed certain items from the Commerce Control List, 

including some dual-use technologies and munitions 

items, parts, and components, to be exported to Hong 

Kong without a transaction-specific license. Furthermore, 

under the International Traffic in Arms Regulations, Hong 

Kong was eligible to receive certain types of United States 

Munitions List-controlled arms and munitions, such as 

machine guns, space technology, and high-end military 

night vision devices. 

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Arms Control and International Security Papers Volume I, Number 17 I August 26, 2020 

U.S. National Security Export Controls and Hong Kong: A Case Study in the 

Unhappy Death of a Happy Teleology 

The net effect of these various permissions was to 

allow Hong Kong under PRC control to receive certain 

sensitive items and technologies that were prohibited for 

export directly to the PRC itself, and potentially even 

legally to re-export some of those same controlled dualuse items to the PRC. Because of the Commerce license 

exceptions, moreover, U.S. national security officials often 

had no way of knowing what was going to Hong Kong in 

the first place, let alone the ability to stop a problematic 

transfer. 

IV. Repression and Response 

From a national security perspective, this left a great 

deal to be desired. But the problem became acute as the 

United States learned more and more about the sweeping 

"Military-Civil Fusion" (MCF) policy that the PRC had set in 

motion in 2009 - and which was elevated to the level of a 

national strategy in 2014, which General Secretary Xi 

Jin ping personally oversees. MCF seeks to erase 

boundaries between China's civilian and military 

industrial sectors in order to ensure the simultaneous and 

direct application of any militarily useful technology to the 

People's Liberation Army in service of the Chinese 

Communist Party's (CCP's) strategic goals and antiAmerican revisionist geopolitics, and it has the full force of 

PRC law and Party coercion behind it. It was immediately 

apparent that MCF would require a wholesale reform of 

u s national security export control policy and diplomacy 

vis-a-vis the PRC - revisions for which I began calling in 

July of 2018 after arriving at the State Department - and 

Hong Kong export controls were no exception. 

Pressure on the traditional post-1997 policy of 

pretending that Hong Kong wasn't part of the PRC 

continued to grow in 2019 with the ugly and heavy-handed 

involvement of Hong Kong police units in suppressing the 

months of pro-democracy demonstrations that began in 

response to the HKSAR's efforts to revise extradition laws 

in order to permit Mainland PRC officials to take custody 

of suspects from Hong Kong. Especially with senior U.S. 

officials such as Vice President Mike Pence and Secretary 

of State Mike Pompeo speaking out against suppression of 

those pro-democracy demonstrators, we certainly 

couldn't continue "business as usual" rules under which 

Hong Kong police were allowed to buy their equipment 

from suppliers in the United States, and we began to 

implement a policy of a presumption of denial for certain 

export licenses, and at first a notionally temporary 

suspension of certain Commerce license exceptions. (The 

Commerce Department officially suspended the Hong 

Kong's APR exception on June 28, 2020. Hong Kong can 

therefore no longer transfer certain sensitive items to the 

rest of the PRC) 

Ultimately, of course, it was the PRC's imposition of a 

new, draconian "national security law" upon Hong Kong in 

May 2020 that entirely put paid to U.S. "business as usual" 

approaches to Hong Kong - not just in the export control 

arena, but much more broadly. As was made very clear by 

Secretary Pompeo in a joint statement with the Foreign 

Ministers of the United Kingdom, Australia, and Canada, 

"China's decision to impose the new national security 

law on Hong Kong lies in direct conflict with its 

international obligations under the principles of the 

legally-binding u N -registered Sino-British Joint 

Declaration It also raises the prospect of 

prosecution in Hong Kong for political crimes, and 

undermines existing commitments to protect the 

rights of Hong Kong people - including those set out 

in the International Covenant on Civil and Political 

Rights and the International Covenant on Economic, 

Social and Cultural Rights " 

It was clearly no longer possible to pretend that Hong 

Kong enjoyed meaningful autonomy from the PRC, and 

accordingly, on May 27, 2020, Secretary Pompeo 

submitted a HKPA report in which he declared that Hong 

Kong "does not continue to warrant treatment under 

United States laws in the same manner as u s laws were 

applied to Hong Kong before July 1997 " The Secretary 

drew attention, in particular, to the unilateral and 

arbitrary imposition of national security legislation on 

Hong Kong by the PRC, one of a series of actions that 

"fundamentally undermine Hong Kong's autonomy and 

freedoms and China's own promises to the Hong Kong 

people 1mderthe Sino-British Joint Declaration, au N -

filed international treaty " 

On June 30, 2020, consistent with the President's 

directive that we "begin the process of eliminating policy 

exemptions under United States law that give Hong Kong 

differential treatment in relation to China," all remaining 

Hong Kong export control privileges were ended. On July 

14, 2020, President Trump issued Executive Order 13936, 

re-defining the United States' relationship with Hong Kong 

pursuant to Section 202 of the Hong Policy Act of 1992. 

With regard to national security export control policy, 

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Arms Control and International Security Papers Volume I, Number 17 I August 26, 2020 

U.S. National Security Export Controls and Hong Kong: A Case Study in the 

Unhappy Death of a Happy Teleology 

therefore, Hong Kong is now treated - as CCP officials 

have ensured that it must be, on account of their 

repressive moves in violation of the PRC's treaty 

obligations - as just another part of the People's Republic. 

V. Conclusion 

To look back across the history of U.S. national 

security export control policy vis-a-vis Hong Kong, 

therefore, is to be struck by the sadness of the story. A 

thoughtful person cannot be anything but heartsick at the 

ways in which the CCP's authoritarian repression has now 

been deployed to crush the liberty and autonomy of the 

people of Hong Kong- and in violation of the PRC's 

legally-binding treaty obligations, no less, revealing 

Beijing not just as an oppressor but as a scofflaw - just as 

it has long been used to horrific effect against Uyghurs and 

other Muslims in Xinjiang, against Buddhists in Tibet, and 

indeed more generally against the long-suffering Chinese 

peo.pl.e. (Secretary Pompeo recently described the CCP's 

abuses in Xinjiang as "[t]he worst human rights violation 

that we have seen this century ") 

To look back across this history is also to be 

struck by the woeful irony in this tale . Modern Chinese 

nationalism, one must recall, is nothing if not 

incandescent in its rage against what it describes as the 

immorality of the imperialist arrogance from which it feels 

China suffered in the late 19th century. Yet the modern 

reader will also know that it is today the PRC that acts the 

imperialist - not merely in violating its treaty obligations 

under the Joint Declaration by imposing oppressive new 

rules upon Hong Kong, but also in prosecuting by threats 

and intimidation an unlawful claim to vast areas of the 

South China Sea that belong to China's neighbors, not to 

mention militarizing key features there despite Xi Jin ping's 

promise not to do so. Beijing's claim to the entire South 

China Sea, in fact, turns the law of the sea on its head by 

declaring territorial jurisdiction over parts of the sea that 

no country may lawfully claim . And on what basis? 

Nothing more compelling than the grim selfaggrandizement of the Melian Dialogue recounted by 

Thucydides : for the CCP, apparently, might makes right. 

Who, after all, can forget Foreign Minister Yang Jiechi's 

outburst at the ASEAN Regional Forum in 2010 that 

regional states should not contest China's sweeping 

claims to those waters, because "China is a big country 

and other countries are small countries and that is just a 

fact"? 

Here are ironies upon ironies. Where once Britain 

used the Royal Navy to press the Qing for concessions and 

took the New Territories under a 99-year lease, for 

instance, it is now the PRC that has taken possession of 

the strategic Sri I ankan port of Hambantota on a 99-year 

.Le.ase, even as Beijing was also opening the PRC's first 

overseas military base, in Djibouti. Furthermore, where 

once Europeans claimed extraterritorial jurisdiction over 

their citizens on Chinese territory to the outrage of 

Chinese nationalists, now Chinese policemen patrol jointly 

with local law enforcement units in Belgrade, allegedly in 

order to "improve the safety of Chinese citizens" there -

even as ostensibly "private" Chinese security contractors 

expand their footprint in protecting PRC economic 

interests in Africa. 

Whatever mixture of sadness and irony there is in 

looking at Hong Kong and the broader context of the CC P's 

worldwide behavior today, however, it is incontestable 

that radical change was needed in U.S. export control 

policy vis-a-vis Hong Kong - and we are glad to have taken 

it. The broader Western policy community may still be 

struggling to find appropriate responses to many of the 

challenges we face as Sino-Russian revisionism upends 

the optimistic expectations of the post-Cold War era and 

euthanizes the happy teleology of neoliberal convergence, 

but in this particular area the United States is 

demonstrating leadership and vision.