Hong Kong is dying, but has it ever been given a chance to live?

Article by Laura Morazzini | Illustration by Silvia Baccanti

“No other concept is as powerful, visceral, emotional, unruly,

as steep in creating aspirations and hopes as self-determination.”  

(Wolfgang Danspeckgruber)

It’s official. While the rest of the world was busy fighting covid-19 and while social distancing made protests less likely, China quietly prepared his last move on Hong Kong.  

On May 28, China’s National People’s Party, China rubber-stamp parliament, approved a national security law that might lead to a dramatic end Hong Kong’s fight for democracy. 

In fact, as explained by the BBC, ‘’this national security law will make criminal any act of:  

  • secession – breaking away from the country 
  • subversion – undermining the power or authority of the central government
  • terrorism – using violence or intimidation against people
  • activities by foreign forces that interfere in Hong Kong’’ 

In this way, China would be allowed by law, not only to repress upheavals, but also to detain protesters and accuse them of crimes of subversion, secession or worse, terrorism, while making any attempt to political self-determination illegal. This is exactly what happened in ‘’autonomous’’ regions like Xinjiang and Tibet. 

Historical background 

Hong Kong was originally part of the Chinese mainland but was ceded to the British Empire after the end of the First Opium War (1839-1942). When in 1984 the island was decided to be returned to China, its economic and political development was already abundantly shaped by 142 years of British rule.

As a consequence, to preserve Hong Kong’s legal and economic system, the two parts agreed on a gradual return to Chinese rule after 50 years (2047), on the basis on the ”one country, two systems” principle, which allowed Hong Kong to deviate from China’s socialist rule. In what seemed a XIX century’s colonial handover, Hong Kong was not made part of the deal. The agreement was indeed called ‘’Sino-British Join Declaration” (1984). 

In 1997 Hong Kong officially became a Special Administrative Region of the People’s Republic of China (HKSAR), governed by the so-called Basic Law, which protected some basic freedom and rights absent in mainland China. For example, the provisions of the International Covenant on Civil and Political Rights (ICCPR) enforced in Hong Kong in 1976, would remain in effect. Among the provisions:

‘’Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’’. (Art. 9, comma 1)

‘’All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’’ (Art. 14, comma 1)

How does China control Hong Kong? 

According to the Basic Law, Hong Kong can ‘’exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power’’(Chapter I, art 2). Moreover, ‘’military forces stationed by the Central People’s Government in the Hong Kong Special Administrative Region for defence shall not interfere in the local affairs of the Region”(Chapter II, art 14).  

Despite this, China is already, and even not-so-informally, controlling Hong Kong. For example, always according to the Basic Law, Chinese parliament ‘’shall appoint the Chief Executive and the principal officials of the executive authorities’’. This means that the highest political figure in Hong Kong cannot be misaligned with the Chinese rule. And it never is. Carrie Lam, the current Chief Executive, not surprisingly, supported the new national security bill. 

But China exerts also an ex ante influence in the selection of the principal political leaders of the island.

Even if the Basic Law says that ‘’ the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures’’, the current Election Committee is chosen by representative of various sectors among which the pro-China ones are very influential. Even half of the Legislative Council is made by ‘’functional sectors’’ many of which are traditionally pro-Beijing. On June 4, these sectors made possible the passing of a law wich literally makes insulting China’s national anthem a crime. 

Nevertheless, the orientation of the country has been clearly stated in the last district elections, where the pro-democracy movement gained control of 17 out of 18 councils. In fact, even if just 11% of the population seeks political independence, the majority of the country wants China to respect the ‘’one country, two systems’’ principle, and dissatisfaction with the national government is rising steeply. (Source: Council of Foreign Relations 

                            
 

Can China do this? 

The content of the new national security bill is almost identical to Article 23 of the Basic Law which, thanks to its unpopularity, never managed to be enacted by the government. More interestingly, Article 23 also states that Hong Kong ‘’shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government’’. This seems to be in contradiction with China’s last move. 

At the same time, always according to the Basic Law, ‘’national laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III.’’ (Chapter II, art 18). As a matter of fact, the new national security law will be added to Annex III, the Basic Law’s main loophole. China will be able to bypass Hong Kong’s legislature to directly affect Hong Kongers’ freedoms and rights. Whenever it wants. 

Concerning the ban towards foreign powers intervention (clearly aimed at the US), one of the most basic principles in international law is the principle of non-intervention in other states domestic jurisdiction, expressed in Article 2 of the UN Charter. Nevertheless, the Charter, which China ratified, expresses also the principle of self-determination (art 1). But it is not clear how third states can enforce it without violating the sovereignty of another state. In fact, the difference between a foreign intervention in defence of human rights and an act of aggression might be very thin. 

Is there still hope for Hong Kong? 

Hong Kong will have to formally lose its special status in 2047,  it has a ‘’Constitution’’ which allows China to change Hong Kong’s law at her likeness through the use of Annex III and it has a system that encourages pro-China political candidates while international law prohibits any country from intervening ‘’in whatever way’’ in other countries’ business.  

But there is always been more than that: Hong Kong’s destiny is tightly linked with Taiwan’s. Hong Kong can’t win this fight, because this would entitle Taiwan to win its own. China cannot create a precedent. It’s no coincidence that Taiwan is the island’s main supporter.  

It doesn’t even have to do solely with economic gains: the protests, US-China trade war, coronavirus and the loss of freedom that will result from the new law, won’t allow Hong Kong to prosper as it used to. Its economy is already suffering and China doesn’t seem to mind. 

This is pure realist and Machiavellian politics. There are too many silenced voices in the Chinese mainland: let one win, they will all believe they can.  

Conclusion 

According to the author, Hong Kong never really had a chance to be a truly political independent entity. International politics and China’s ambitions cannot allow it. But there is still something to fight for. 

First of all, to maintain the ‘’one country, two systems principle’’ as much as possible. Second, it is difficult to impose a purely authoritarian rule on a population used to civic freedoms and rights, so some sorts of compromises will have to be found. Finally, and most importantly, Hong Kong has to fight to make it impossible, in 2047 to be left out from the renegotiation of the 1984 deal. Sooner or later, Hong Kong will have to be heard. 

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