Hong Kong’s right of self-determination: The only way left?
The primary dynamic of the current political situation in HK is a contest between Communist Party-driven mainlandization on the one hand and democracy and self-determination movements on the other. A previous article looked at mainlandization. This article examines self-determination.
What is the right of self-determination and how does it apply to Hong Kong? After the Communist Party’s denial of genuine universal suffrage, and in light of its continual efforts to infringe and restrict other rights, is a push for self-determination the only viable option for HK people?
Catalonia, Iraqi Kurdistan, Puerto Rico, Scotland, Kosovo, East Timor, South Sudan, Montenegro: In the last fifteen years, a strikingly high number of peoples have either held independence referenda or declared independence. In doing so, all invoked their inherent right of self-determination. That list excludes the dozens of new countries formed as a result of the demise of the Soviet Union in the nineties — republics of the USSR, republics of Yugoslavia, Slovakia — and other referenda that took place in that decade — for instance, in 1995, 93 percent of registered voters took part in a Quebec referendum on independence, voting narrowly (50.58 percent to 49.42 percent) to remain part of Canada.
Some on the list above are amongst the poorest on the planet. Some were brutally oppressed. Some are relatively prosperous with fairly well protected rights. Some undertook self-determination processes that were recognized and supported by the countries from which they considered separating; others did so against the will of those countries. Some became independent. Some did not. They are European, Asian, African and Caribbean. We tend to think of the world map as more or less fixed, but in fact, it has undergone significant changes in the last three decades and is continually evolving.
What lessons do the cases of peoples who have considered independence hold for Hong Kong people, who have never in their modern history been granted the right of self-determination? On what legal and moral grounds is the right of self-determination based?
The background
The very first article of both of the world’s two foundational, legally-binding human rights covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, reads as follows:
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Self-determination is the only right to appear in both treaties, with the exact same wording. Why?
As with most fundamental and constitutional documents that are supposed to have a whiff of the eternal about them, the ICCPR and ICESCR are flecked with historical contingency. They came into existence in 1966, as dozens of peoples around the world were achieving independence from colonial domination.
There’s no mention of the right of self-determination in the Universal Declaration of Human Rights, the non-legally-binding document of 1948 upon which the ICCPR and ICESCR are based. Self-determination is mentioned in the United Nations Charter of 1945, though not explicitly as a right. It was newly independent states that pushed for the Covenants, 18 years after the UDHR, and also ensured that the right of self-determination came first in each. The logic was that the only way to ensure that peoples had all other rights was if they had the right to determine their own political status; having done so, the thinking went, they would be in control of their destiny and thereby more able to ensure the other rights, dependent as they are on political freedom.
As far as the UN, an organization made up of states, was concerned, this was the high-water mark for self-determination. Never since have states, for obvious reasons of self-interest, been so keen on this right. They have generally gone out of their way to emphasize state sovereignty over self-determination. In the most recent cases, the Catalans and the Iraqi Kurds, you have to look hard to find a state that supports their right of self-determination. Still, numerous peoples over the last half-century have asserted their right, some much more successfully than others, and they continue to do so.
Hong Kong people and the right of self-determination
That HK people have this right is indisputable — all “peoples” do.
Even from a strictly legalistic perspective, Basic Law Article 39 states that HK is party to both the ICCPR and ICESCR, which, as we’ve seen, guarantee the right. In 1975, the UK inserted a reservation into the ICCPR regarding HK and the right of self-determination. Given that HK’s political status has changed since then, there is some question as to whether or not the UK’s reservations on HK still pertain. The UK also made a reservation regarding HK and the right to universal suffrage, but the UN Human Rights Committee, which monitors states parties to the ICCPR, has said it no longer applies. China, unsurprisingly, doesn’t agree and has argued that all reservations on HK that it inherited from the UK continue to apply. HK is also party to the ICESCR, and there is no reservation regarding HK and the right of self-determination under that covenant.
The main issue at stake is, are HK people a “people”? The right of self-determination, unlike, say, the right to freedom of expression, is a group right, not an individual right. While it’s usually pretty easy to determine what an individual person is (short answer: every human being), it’s not always as easy to define a “people”. To complicate matters, there is no international consensus on the legal definition of a “people”.
Still, generally speaking, the standard criteria are quite clear: a group of people who share a common heritage, history, culture, language, a clearly defined and usually geographically contiguous territory, and often but not always a separate jurisdiction, and, by virtue thereof, have an identity distinct from their neighbors’. On all these counts, HK people do indeed constitute a “people” and thereby qualify to partake of the right of self-determination. Even if you say HK people are Chinese, they are also distinct from other people considered Chinese based on most of the above criteria.
The thing is, while definitely a “people”, HK people have never once in their modern history, from the time of the British takeover in 1842, been allowed to exercise this right: Their political status has always been determined by others. First they were a UK colony. Then they were handed over to the Communist Party like a present (indeed, the Party chose its own birthday, 1 July, for the handover date). HK’s “mini-constitution”, the Basic Law, was articulated and implemented by the Communist Party with virtually no participation by the people of HK, certainly not in any formal, representative sense. Nor did the Sino-British Joint Declaration or Basic Law ever go through any kind of formal approval process, such as a referendum, whereby the people of HK had an opportunity to either accept or reject those documents determining its political status. The HK people never formally agreed to be part of the PRC any more than they agreed to be a UK colony.
Self-determination versus state sovereignty
Nobody would probably even be discussing self-determination if the Communist Party had just respected HK’s supposedly “high degree of autonomy”. But it hasn’t, and that’s the crux of the matter. Its denial of genuine suffrage in 2014 and 2015 was the last straw. What made it all the worse, and all the more ominous, was that in asserting that it was allowing “universal suffrage”, it disingenuously pretended to grant the very thing it withheld. Either the Party was not acting in good faith or its understanding of universal suffrage was so divergent from international law and standards as to fail to constitute it. On top of that, the Party says its 31 August 2014 decision denying genuine suffrage stands for all time and will not be amended. In other words, HK is indefinitely stuck with the denial of this basic human right. The chances of the Party ever allowing the suffrage which the Basic Law legally obliges it to grant are exceedingly low, so low that one can say the Party has reneged on its implicit contract with HK, according to which HK people would tacitly recognize PRC sovereignty in exchange for real autonomy and the right to form their own government. And if that is the case, it surely justifies the demand for self-determination, for it has been shown that the basic rights of HK people will not be respected or realized under HK’s current political status as a Special Administrative Region of the PRC.
It has been frequently pointed out that there’s no internationally recognized right to secession. Not only is that right implied and embodied by the right of self-determination, but the fact that HK was first a colony of a state on the other side of the world long after most other colonies ceased to exist and then a Special Administrative Region of the world’s largest dictatorship, improves HK people’s argument for the right of self-determination, whether that entails secession or another option. In other words, HK people’s political status is contested, and the fact that the current governing power refuses to grant it promised rights improves its case.
Even conservative scholars of international law who argue that the right of self-determination must be highly circumscribed and that state sovereignty and territorial integrity are paramount allow that “a general right to secede [exists] if and only if [the people] has suffered certain injustices, for which secession is the appropriate remedy of last resort.” This is known as Remedial Right Only Theory. What constitutes “certain injustices”? Iraq’s genocide against the Kurds is certainly a “certain injustice”, even though Iraq’s no longer ruled by the genocidal dictator. What about the Party’s denial of universal suffrage to HK? After all, it involves no direct physical violence or atrocity. Yet it constitutes the indefinite denial of a basic human right promised to HK. And as for “of last resort”: Over 20 years now, HK people have tried just about everything to get the Party to honor its promise, and finally, rather than doing so, it redefined the term “universal suffrage”, twisting it beyond recognition, in order to continue denying it. That’s what the Umbrella Movement was about. It said, We’ve had enough, what else can we do? And that didn’t work. So now what? We’ve reached the last resort.
Wherever balance is struck between state sovereignty and territorial integrity on the one hand and the right of self-determination on the other, sovereignty cannot trump the right of self-determination in undemocratic states (China, HK) and places where the people have never had an opportunity to freely determine their political status (HK). Dictators’ assertions of sovereignty are tantamount to tyranny. The whole logic underpinning international human rights law, whether as regards the right to universal suffrage or the right of self-determination, is that it is the people, not unelected leaders or dictatorial regimes or even states, who are sovereign.
When the Communist Party argues that Basic Law Article 1 states unequivocally that HKSAR is an “inalienable” part of the PRC, one must ask, Says who? HK people themselves have certainly never consented to this designation; it was imposed upon them. HK people have “inalienable” (a term present in the preambles of both the ICCPR and ICESCR) human rights not only inherent to them by virtue of being human beings but also via Basic Law Article 39, including the right of self-determination, which they have always been denied.
The recent history of the self-determination movement in Hong Kong
The right of self-determination first entered mainstream political discourse within the HK pro-democracy movement shortly after the end of the Umbrella Movement in December 2014 and even before the Party’s fake suffrage was finally defeated in the Legislative Council on 18 June 2015. I clearly remember Joshua Wong discussing self-determination at a panel discussion at the protest camp outside of Legco in the days leading up to the vote on the fake suffrage proposal. It was indicative of the mood in the pro-democracy movement that many were already moving beyond the suffrage debate since it was clear that under the Communist Party, genuine suffrage would never be granted to HK. The question was, well, then, what next?
Joshua proposed self-determination as the next step of the pro-democracy movement in his first essay on the topic in August 2015. The political party which he eventually co-founded in April 2016, Demosistō, has made self-determination one of the cornerstones of its mission.
Proponents of HK self-determination have gone out of their way to state that while they don’t rule out independence as one of the possible outcomes, they don’t support it either. Their point is that even more basic than determining what HK’s political status should be is that it should be HK people themselves who determine it. Apart from full independence, other options are full assimilation into the PRC and some form of autonomy, presumably similar to the “high degree of autonomy” HK’s supposed to enjoy now.
However, the fact that the Communist Party has never allowed genuine autonomy in the PRC and that the regions in the PRC designated as autonomous (Tibet and Xinjiang, for example) are ironically the most tightly controlled by the central government, should give autonomy proponents pause for thought. Quebec, Greenland and Åland are often held up as successful examples of “internal self-determination”, but it should be noted that all three are within states (Canada, Denmark and Finland respectively) which are stable liberal democracies with solid protections for minority rights (ie, a far cry from the PRC). There are no successful examples of internal self-determination under dictatorships.
At one point, HK people might have been content with the “high degree of autonomy” they were promised, but now that that has been significantly eroded and is perceived by many to be quickly disappearing, it is indeed less likely HK people would settle for this, if for no other reason that it appears unsustainable under Party dictatorship. Thus, it’s understandable why the Party, not for propaganda reasons alone, conflates self-determination and independence: It seems to recognize that, in the eyes of many HK people, it has lost the moral right to rule HK.
The rise of self-determination and the Party backlash
For a time, the rise of the idea of self-determination in HK seemed inexorable. Even moderate pan-democrats were catching self-determination fever.
In April 2016, about thirty self-described “young democrats” — moderate politicians, activists and academics — calling themselves ReformHK published a “Resolution on the Future of HK” which advocated self-determination, invoking international law as outlined above to buttress their argument, and proposed “perpetual self-rule” for the city. They appeared to be hedging somewhat, especially in comparison to Joshua, as they spoke in terms of “internal self-determination”. It was hard to know how exactly this was different from what HK people understood the Party was supposed to allow them all along, a “high degree of autonomy” and “HK people ruling HK”, except that the group advocated continuing these policies beyond the end of the 50-year “one country, two systems” arrangement in 2047. (The Party has refused to discuss arrangements beyond 2047, and much of the self-determination push has had to do with what happens after then.)
In March and June 2016, two moderate pan-democratic political parties, issued manifestos that stressed HK people’s right to rule HK. The Association for Democracy and People’s Livelihood (ADPL), called for self-determination. Civic Party, while not using the term “self-determination”, spoke of defending HK, of autonomy, of ensuring that HK people decide what happens to HK after 2047, noting that they had not had any say in the Joint Declaration or Basic Law. The idea was in the air.
By October 2016, Joshua and Jeffrey Ngo were actually engaging in a media debate with Song Zhe, the Commissioner of the Foreign Ministry of the PRC in HK. The latter’s “Self-determination in Hong Kong is a Non-Issue” appeared in The Wall Street Journal in mid-October. Of course, Song Zhe would not acknowledge he was debating the two, but between 14 October and 9 November, Joshua and Jeffrey wrote six articles and Song Zhe two which were obvious rebuttals of Joshua and Jeffrey’s.
(Joshua and Jeffrey focus on the PRC’s successful effort in the early 1970s to have HK removed from the United Nations Special Committee on Decolonization’s List of Non-Self-Governing Territories, and say this amounted to stripping HK of its right of self-determination. While this is important history, I don’t think it’s crucial to the question of the right of self-determination since, according to international law, basic human rights are inalienable- they can never be taken away, and HK people retain their identity as a “people”. How, after all, could a people have their status as a people and the right of self-determination taken away by a dictatorial regime at a time when it did not even exert sovereignty over them? At most, it makes it more difficult for the UN as a body to recognize HK’s right of self-determination, but the chances of the UN doing that anyway were low to non-existent. See the recent case of the UN Special Committee on Decolonization refusing to accept the petition of 1.8 million West Papuans for an example of how this works.)
Then the Party got freaked out by how well advocates of self-determination did in the September 2016 Legco elections, entering into the formal political system, and has since gone on the attack, doing whatever it can, not only to dislodge them from Legco but also to eviscerate their organizations.
Eddie Chu Hoi-dick, the top vote-getter ever in Legco elections, is one of the few outspoken self-determinationists still left in Legco. While he shares with Joshua and Demosistō the same objective of self-determination, the two have quite different ideas on how to get there. Both regard self-determination as a long-term project, with the goal being for HK people to determine HK’s political status after 2047.
Joshua, though, envisioned developing a culture of referenda that would eventually lead up to a referendum on HK’s post-2047 political status to be held some fifteen years down the road, around 2030. The justification for putting it off that long was to give HK people time to acquaint themselves with the referendum mechanism and debate the political status options so that they could use their vote responsibly and fully avail themselves of the opportunity. The major unanswered question was how in the world did Joshua imagine the Party and HK government would ever recognize such a referendum as legally binding? The hinted answer seemed to be, We’ll cross that bridge when we get there.
Eddie Chu, on the other hand, thought working through the existing political system was the answer. Shortly after his victory in September 2016, he envisioned that within four to eight years, the self-determination camp would be the biggest in Legco. Less than a month later, the HK government initiated legal proceedings to dislodge first two elected Legco members and eventually four more. Of these six, four were explicit proponents of self-determination, and the other two were very sympathetic to the cause. So much for the Party and the HK government allowing representatives holding such political beliefs to hold office within the formal political system.
Recently, neither Joshua nor Eddie have said much about self-determination, presumably because they’ve been rather busy fending off attacks by the Party and HK government. (ReformHK recently published a book focusing on self-determination and setting it in an international context.) Joshua’s hardly mentioned self-determination in recent months, presumably for fear of losing international support at a time when the Party is on the offensive and throwing people in prison, where he himself now sits. At any rate, both of their ideas for advancing the cause of self-determination, through referenda and Legco, face clear obstacles.
This would seem to support critics’ views of self-determination and independence advocates. They say the ideas are simply unrealistic. But what’s so realistic about continuing to push for real universal suffrage? Are the chances of getting that any greater than they are for self-determination? You could say self-determination is almost the only option remaining for HK people. What other recourse do they have to secure their basic human rights?
The Party clearly perceives self-determination advocacy as a threat. Will it succeed in destroying the advocates? Its current crackdown is so intense and widespread that it affects most everybody in the pro-democracy movement, which has the ironic effect of actually bringing them together. Self-determination was originally inspired by localists. Many moderate pan-democrats have inched their way in that direction, as witnessed by the Civic Party and ADPL manifestoes of 2016. Legco member Claudia Mo left Civic Party to start Hong Kong First. Another Legco member Fernando Cheung of Labour Party “caucuses” with the self-determinationists. Then you’ve got Demosistō, Democracy Groundwork, Eddie Chu, League of Social Democrats, People Power, Civic Passion, Youngspiration, Hong Kong Indigenous. Just about the only prominent pro-democracy group that hasn’t indicated support for one form or another of self-determination is the Democratic Party. Looked at that way, a wide swath of the pro-democracy movement is already self-determinationist. What remains to be seen is whether they will manage to meld the self-determinationist cause, for which there is widespread support, into a political force. Doing so while under Party attack is challenging, to say the least.
Meanwhile, the forces of Party-driven mainlandization cast an ever-longer shadow over HK, where time does not stand still. The clock is ticking. Which side will win in the end?
On its side, the Party has military force, economic might, an ideology that prioritizes maintaining its empire (which it calls “state sovereignty”) above almost all else, and the state-centric bias of the international community’s preference for the status quo. HK people have international law, justice and morality on their side — not necessarily a winning combination, but neither should it be underestimated. Oh, yes, and people power. That coupled with determined, unified resistance and a clear game plan focused on achieving a positive common objective would constitute at the very least a force to contend with.
The struggle continues. Underlying the issue of self-determination is the question of who does a people, a land belong to? Does HK belong to the Party, to China, to HK people? The Party-stoked nationalism on the mainland has led many Chinese to see HK as belonging to China, not HK people. The latter need to fight to ensure that, after 175 years, that question will finally be up to the HK people to decide.
This article is the fifth in a 5-part series on the Umbrella Movement three years after its beginning in September 2014. The first article is “Why I wrote ‘Umbrella’, a 600-page account of the Umbrella Movement”; the second, “The Umbrella Movement after three years: So much accomplished, and much still to do”, and the third, “Three years on, the Umbrella Movement fallout determines Hong Kong politics today”, and the fourth, “Mainlandization: An overview of Communist Party attempts to control and assimilate Hong Kong”.
Kong Tsung-gan is the author of Umbrella: A Political Tale from Hong Kong. He envisions a time when September 28 will be HK’s national day and “Raise Your Umbrellas” its national song.
