It’s a generational thing: Should agreements and legislation have a use-by date?

In this paper, I propose a new approach to the tenure of agreements, which could have had the potential to avert the Hong Kong crisis, and would be beneficial in many current and future self-determination disputes. History records that various parts of Hong Kong were occupied by the British in the 1800s. In the 1890s, the Hong Kong Convention was agreed and signed between the two countries, providing a 99-year lease to the British. They would hand over the territory of Hong Kong back to China in 1997. As 1997 approached, I suggested that the Convention should have been dissolved, and a new course negotiated.

But, instead, the agreement was honoured without question, and the territory was handed back on schedule. The seven million residents were, and are, rightly alarmed about their prospects – being integrated into mainland China, with the imminent loss of most human freedoms.

This is indeed proceeding. Tools of oppression common on the mainland are being introduced in Hong Kong, and elsewhere. The technology includes street cameras, facial recognition, and monitoring of social media. In other occupied territories we frequently we see pairs of Han policemen (an ethnic group) standing back to back and turning their heads slowly. In this way they can surveil a full 360 degrees every 60 seconds, and report back by earpiece radio. I call them chibots, as they evoke Chinese robots.

All these tools are used to trace dissenters, with immediate penalties including loss of social credits, education, and travel rights. This totalitarian virus is spreading from the mainland to Hong Kong. Disappearing activists are presumably extradited to mainland prison camps, which is probably as pleasant as being sent to the Siberian gulags or the Warsaw ghettos. The tentacles of the Chinese Communist Party even reach to the diaspora in Australia, where Chinese students are warned that penalties could be imposed on family back home. This leads them to disrupt peaceful protests supporting the Dalai Lama and others.

Disaster avoidance

This loss of human rights was all foreseen and could have been avoided. There was an opportunity to seek a just solution. As the 1997 handover approached, I wrote that the 1898 Convention providing for handover in 99 years time should have been torn up, when the last of the signatories died.  What basis can be provided for this? In my paper Measuring Morality this is explored in detail. In this theory, the merit of each decision option can be evaluated from the number of people affected, and the degree of benefit or harm falling on each.

Our concern is for the welfare of humans (and other sentient animals). A major factor in welfare is the opportunity to pursue goals to fulfil one’s life as one chooses. After the basic needs such as food, shelter, and health are fulfilled, attention can be given to permitting a fulfilling career, friendships, marriage, children.

All these rights rely on freedom of speech, freedom of association, and freedom from oppression, as many human rights charters have recognised. The totalitarian Chinese government systematically destroys these freedoms, as shown by their sanctioning of the doctor who warned of Covid-19, accusing him of “spreading rumours and inciting unrest”. The official persecution of minorities such as Uighurs is detailed in internal CCP documents. The harm is underlined by the ongoing protests in Hong Kong, civil breakdown, and thousands seeking to emigrate to other countries. Modern media makes it easy to see that the current citizens want to remain as separate from China as possible.

What of the original agreement? Those signing it in the 1890s might or might not have had good intentions. They might or might not have validly represented the people of Hong Kong and China. Factors operating at the time included colonialism, the opium trade, and military might. We don’t know, and it no longer matters; the parties to the agreement are all long dead. There is no moral entitlement to pass obligations and rights on to one’s progeny. Decisions regarding Hong Kong should be made for the welfare of the living. The passage of time and generations wields a great eraser.

If all agreements are to have a potential use-by date, when should that occur? Let us take a simple example to derive a heuristic rule. Suppose that the Australian Parliament passes an Act, which is later regarded as mistaken. I have demographically modelled the age distribution of sitting MPs, and combined this with life expectancy tables (Natural Attrition of Parliamentarians in Australia, Bryce, September 2020). It turns out that after 23 years, half the incumbents will have retired or died. They will have been replaced by a new generation, who played no part in the original decision. Thus a figure of 25 years is suggested as the time frame when half the validity is erased.

The law and human rights

The position of this proposal within the existing human rights framework can be explored. I suggest the following:

1. This new paradigm could take the form of a human rights principle, which can be considered or referred to by existing jurisdictions.
2. If an agreement was unjust or one-sided from the start, such as one imposed by a malicious dictator, then we would hope to allow the citizens to challenge it whenever they are able.
3. If, on the other hand, the agreement is seen by the new generation as beneficial, then they can effectively re-endorse it and continue. Perhaps the Magna Carta and the many Declarations of Human Rights lie unchallenged because they fall in this category.
4. What about obligations of corporate entities? James Hardie had large liabilities imposed, for future compensation for asbestos-related diseases. A shareholder buying into such a company can have such liabilities imposed. But this is with full disclosure, and no one is born into penance.
5. Revising borders between countries comes with great costs, so would only be justified where gross violations are occurring (perhaps such as the push for a Kurdistan as discussed below).
6. Wills and testaments allow for benefits to flow to selected others (bequests), but the law does not allow imposition of harm or penalties.
7. A related principle is that if circumstances change so that the objectives of the original signatories no longer apply, then the citizens have the right to ask for a review.
8. This proposed 25 year review interval will also parallel the advance of scientific knowledge, which sometimes overturns the basis for old practices. How nice it would have been to have a use-by date for these laws:

• • Defining religion to be charitable (England, Statute of Elizabeth 1601)
  • Ordering the dunking of witches (Europe 1650)
  • Prohibiting abortion (NSW 1919)
  • Declaring homosexual acts illegal (Tasmania 1924).

The existing arenas of human rights, the legal system, and international relations would not be overturned, but augmented, by this proposal. How could this expiry by generation principle be implemented? If widely recognised, the various human rights bodies and responsible states could have emphatically told China that its claim to Hong Kong has expired. Of course, it is difficult to convince any bully to desist. But the more this new principle of self-determination by the living is known, the better equipped the free world will become, to intervene in such cases. There are many other nations and groups at risk from territorial ambitions of bullies, where this principle (and the others above) might be brought to bear. My understanding of the circumstances are as follows:

• • Taiwan (Formosa). During Mao’s invasion of the mainland around 1949, the defeated government fled to Taiwan, which the Maoists attempted to invade, but failed to do so. The Communist Party still proclaims ownership, on the grounds that Taiwan was and always will be part of China. Their argument falls down on the new principle and others. Kevin Rudd tells us to be polite to China over Taiwan, to avoid endangering ourselves. I say join with the world in speaking out. This principle would be a good start.
  • Middle East. Many areas have been held by Muslims and Christians from time to time. Both sides claim rights on the basis that God promised the land to their ancestors. The principle of expiry by generation looks instead to the needs of the living.
  • The Middle East was carved up by Western powers in the 1920s, leaving the otherwise-unified Kurdish people split among four states with no interest in their welfare. It is widely considered that they would benefit from being their own state.
  • Uighurs, Tibetans, Timorese, and West Papuans. Occupying states often claim a mandate on the basis of agreements many decades old. If we insist that such have expired, then the other human rights freedoms can be brought to bear, assisting claims for self-determination.

In summary, I think a Principle of Expiry by Generation would help to free mankind from many ancient millstones.

This article was originally published in the June 2021 edition (vol. 121) of Australian Rationalist.

Photo by Robert Bye on Unsplash