Adhira Rajesh Menon
On 30th June, China passed a national security law with wide-ranging effects in the territory of Hong Kong. The law has faced huge criticism from the residents of Hong Kong as well as from states all over the world. This article discusses the right to self-determination for the people of Hong Kong in the light of the new law and the remedy available to them in the context of international law.
The territory of Hong Kong was ceded to Britain by China through a series of conventions and treaties between 1842 to 1898. The Second Convention of Peking that was signed on 1st July 1898 between the two states leased new territories between Boundary Street and Shenzen River to Britain for 99 years. With the expiration of the lease agreement approaching soon, U.K and China signed the Sino-British Joint Declaration with the stipulation that though Hong Kong would become a part of the territory of China, it would be operating under the ‘One country, two systems’ principle for 50 years. Under this principle, Hong Kong would function as a capitalist economy with its own legal system and their residents would be entitled to rights to speech, assembly, etc. among other rights until 2047. Thus, Hong Kong became a Special Administrative Region of China.
The Right to Self Determination & National Security Law
The Right to Self Determination, one of the core principles of international law was adopted in the Declaration of Friendly Relations in 1970 and is reaffirmed in Article 1 common to International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). By virtue of this right people can freely determine their political status and pursue their economic, social and cultural development. This principle has now acquired the status of jus cogens with the obligation flowing from it as erga omnes, reiterated by the International Court of Justice in its Advisory Opinion on the Wall.
Article 39 of the Basic Law (the constitution of Hong Kong) states that the territory is a party to ICESCR and ICCPR. Moreover, the residents of Hong Kong are a group of people who share a common heritage, history, culture, language, a clearly defined territory, and a distinct identity. Hence, they meet the standard criteria for people and qualify for the right to self-determination. However, ironically the residents of Hong Kong have never been allowed to determine their political status. They were shuffled between the British Empire and PCR without a plebiscite being conducted.
The new national security law that PCR passed on 30th June seriously undermines the autonomy that Hong Kong has enjoyed till now. Under Article 23 of the Basic Law, Hong Kong was to enact its own national security law but it wasn’t done until now because of the unpopularity it attracted. Beijing claims that the law will further economic development and bring political stability to the territory especially after the wide-scale protests against the extradition law and the pro-democracy movements last year. The text of the new law brings multiple changes in Hong Kong with severe repercussions on its autonomy. It broadly criminalizes four types of activities- secession, subversion of state power, terrorism and collusion with foreign entities with a punishment up to life imprisonment. A national security agency will be set up in Hong Kong by China that will oversee the investigation and take control of it from local law enforcement. Rights and freedom will be protected in accordance with this law. Since this law is superior to the local law and Basic Law, a recourse to challenge the law due to its vague definitions of the crimes that can possibly violate human basic right is inexistent. The courts in the Chinese mainland will have complete legal jurisdiction on the matter of complex and serious cases brought under the law. The power to interpret the law will not lie with the courts in Hong Kong and instead will lie with the NPC. Legal scholars and analysts believe that the law poses a great threat to human rights and will erode the autonomous character of the territory pushing it towards an authoritarian rule. This law will be directly enacted into the law of Hong Kong through a strategic legal move that bypasses the city’s parliament.
Can The Residents of Hong Kong Claim the Right To Self Determination?
It is evident that the new law is a clear breach of the ‘One country, two systems’ principle. In such circumstances, Hong Kong’s residents are justified in demanding their right to self-determination. This right when exercised internally seeks for autonomy within the mother state allowing the people broader control over their political, economic, social and cultural development. However, secession may not be an option since it is not allowed in the internal exercise of the right to self-determination as confirmed by the Canadian Supreme Court in the Quebec case in 1998. Remedial secession is only available through the external exercise of self- determination in the context of oppressed and colonized people. Since there is no explicit prohibition to secession in international law, using the Lotus principle, one could argue against the remedial only theory and claim that secession may be allowed through peaceful means. Even if this argument fails to work, perhaps, it could be argued that remedial secession can be triggered since the national security law appears to violate the basic rights of the residents of Hong Kong and thus oppressing them. The development of international law in the 20th century has maintained a constant ideology of granting secession when the people fighting for the same have been oppressed and the mother state is incapable to legitimately represent the people’s interest.
The people of Hong Kong have an inherent right to self-determination and the validity of this claim should not be a point of contention. The UN Charter recognizes this right in its Article 1.2 making the right universal such that it transcends the state domestic laws. However, international law is silent on the point of the right to secession and hence the answer to whether Hong Kong is entitled to this right is still uncertain. The move by the Chinese government has attracted criticism from legal professionals and states across the world. The United States has in recent days, imposed sanctions and visa restrictions on China. On 19th June 2020, the European Parliament voted in favour of bringing China before the International Court of Justice over its decision to adopt the new national security law alleging that it violates the Sino-British Declaration and ICCPR. The role that the ICJ and international law can play in ensuring justice for the people of Hong Kong in present circumstances can only be determined as time goes.
Adhira Rajesh Menon is a 3rd year law student at Gujarat National Law University, Gandhinagar.