Strategic Foresight


Hong Kong and International Law’s Hypocrisy

20 Oct 2014 - 16:14

If the international community gave Hong Kong 10 per cent of the attention that it has paid to Kosovo, Ukraine, the Falklands, or even Taiwan and Tibet, Hong Kong would be better placed to defend the political autonomy that the United Kingdom and China promised it 30 years ago. Much has been said about how patriotic to China future chief executives of Hong Kong must be. Questions and rebuttals have been raised about whether universal suffrage is provided for in the Basic Law, and how it should be implemented. China, of course, demands absolute adherence to its state sovereignty and non-interference in its internal affairs. What is left unsaid is the complicity of the international community in creating the situation in which Hong Kong people find themselves, and its continuing silence.

For the past two years, at seminars and conferences, I spoke against Occupy Central, which was instigated by three academics including Benny Tai, my administrative law tutor at the University of Hong Kong thirteen years ago.

I was wrong.

The courage, resilience and solidarity that the world has seen in Hong Kong’s young people are nothing short of inspiring. In a city polarized by astronomical property prices and successive governments that are inattentive to the needs of the people, Hong Kong’s young people have managed to galvanize enormous support – and political consciousness – across all segments of society, and indeed around the world. It has been a very long while since Hong Kong could be said to enjoy true community spirit. I am saddened and ashamed to be far from the heat of action.

The Right to Self-determination

The United Nations Charter proclaims self-determination as a principle of international law. As a colony of the United Kingdom from 1842, Hong Kong was listed as a non-self-governing territory under Chapter XI of the Charter, with a view to ‘the progressive development of their free political institutions’. When the government of the People’s Republic of China was recognized by the United Nations as the legitimate government of China in 1971, it immediately demanded Hong Kong’s removal from the list. The international community obliged and the United Kingdom did not even protest.

The fact that China proffered a competing claim of sovereignty over Hong Kong does not alter Hong Kong’s right to self-determination, which must, at the very least, be ascertained through genuine consultation and exercised by its people. Genuine consultation of the freely expressed will of the people is ‘the very sine qua non of all decolonization’, as the International Court of Justice pointed out in 1975. Self-determination is now a norm of jus cogens, universally binding on all states. The United Kingdom has continuing legal obligations to safeguard Hong Kong’s right to self-determination, independent of the Sino–British Joint Declaration or the handover of sovereignty in 1997.

Not Just a Place to Make Money

International law scholars, other than those with an interest in Hong Kong, dismiss or ignore the issues of self-determination that Hong Kong presents. In his treatise Self-Determination of Peoples, Antonio Cassese only mentioned Hong Kong in two footnotes, where he argued that Hong Kong was not a case where self-determination was relevant, and in his one-line conclusion that the Joint Declaration was ‘a useful model for dealing with disputed territories’. Meanwhile, Cassese devoted two chapters to Gibraltar and the Falkland Islands. When I raised the issue of Hong Kong at a Hague Academy of International Law discussion in 2011 (after patiently listening for more than one hour when everyone focused on Kosovo), one professor accused me of monopolizing discussion. In the debate about democracy in the past two decades, such luminaries as Thomas Franck, Anne-Marie Slaughter and James Crawford did not refer to Hong Kong. Mongolia, on the other hand, is evidence that democratic governance has matured as a norm of customary international law.

The young and old people of Hong Kong have shown the world that the city is not just a place where people come and go to make money. Hong Kong people, too, have a sense of what is right – and we deserve what is right. Naturally, there are people who disagree with what the protestors are doing (as I did until I saw Hong Kong police use tear gas on young people). It is their right, too, but it is precisely because of many people’s frustration at being entirely shut out of decision-making processes, and their fear that their right to disagree will in time dissipate, that they are taking action. I hope that even those who disagree appreciate that we have failed our young people through our silence during the past 30 years, and that they are saving Hong Kong from our mistakes and cowardice.

Hong Kong's distinct identity, political autonomy, rights and ways of life are all at stake, and they have nothing to do with whether or not one loves China.

Phil C.W. Chan is a Senior Research Fellow at Katholieke Universiteit Leuven, Belgium. He read law at the University of Hong Kong, the University of Durham, and the National University of Singapore where he obtained his Ph.D. His book, China, State Sovereignty and International Legal Order, is forthcoming in 2015.

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