The British Government owes us right of self-determination. The Joint Declaration and the Basic Law lack legitimacy because both exclude the participation of Hong Kong people therefore people of Hong Kong continue to enjoy the right of self-determination. The transfer of Hong Kong to the PRC can only be validated by means of an informed referendum, held at the appropriate stage, on the basis of universal adult suffrage, and conducted fairly and impartially, preferably by the United Nations. Therefore, the PRC has no claim over Hong Kong’s sovereignty.
Right of Self-determination
As the name suggests, self-determination is not a political idea, but a right enshrined in the UN laws that demands respect:
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) begin with assertions about the right of self-determination:
“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. “
UN Charter Article 73 states:
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories…..”
This article includes the obligation of the countries, responsible for administering non-self-governing territories, to assist the territory in moving toward self-government.
Extension of ICCPR to Hong Kong in Secrecy and the Grand Betrayal
The UK ratified both ICCPR and ICESCR in 1976. The ICCPR was extended to Hong Kong but nobody knew. I am not sure about the ICESCR but it could be looked up in the UN papers. The British Government fulfilled its obligations under the ICCPR in respect of other dependent territories, except Hong Kong, which learned of ICCPR's application to Hong Kong belatedly through the Joint Declaration. And one of the principal obligations of the British Government under ICCPR treaty is to ensure that any person in Hongkong whose rights and freedoms as recognised in that instrument are violated shall have an effective remedy (Article 2).
“Under Hongkong’s common law legal system, a treaty is not automatically incorporated into domestic law. This is because of a “well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action”.
……
For 12 years, the people of Hongkong did not demand a domestic bill of rights because, as the British Government admitted to the UN Human Rights Committee, no publicity was given in Hongkong to the fact that the ICCPR applied to this territory. Now, thanks to the Joint Declaration, Hongkong has discovered the ICCPR and the fact that it is entitled to protection under that international treaty. But when the people of Hongkong ask that the Government fulfil its treaty obligations, even belatedly, the Attorney-General’s reply is that we must wait until the PRC has drafted the 1997 Basic Law.” (Hongkong singled out for step-motherly treatment, SCMP Oct 17, 1988)
And we all know the PRC has not ratified ICCPR and choose to offer something that is very Chinese, a fake copy version of the ICCPR called the Bill of Rights Ordiance which was legislated later, and it is not exactly the ICCPR. This is how people in Hong Kong received the Basic Law:
“Within three hours of its adoption, even Hong Kong’s non-elected legislature voted overwhelmingly to reject it. In a more dramatic gesture, the 170,000-strong Hong Kong Federation of Students burnt a model of the Basic Law and dumped hundreds of torn copies on the step of the New China News Agency, China’s unofficial embassy in the territory.” (John W. Head)
Violation of the Right of Self-determination
The transfer of sovereignty over Hong Kong from Britain to the PRC violated the right of self-determination which was to be validated by “means of an informed referendum, held at the appropriate stage, on the basis of universal adult suffrage.”
The arguments of Hong Kong for the right of self-determination were provided by Professor Nihal Jayawickrama as listed in John W. Head’s “Selling Hong Kong to China: What Happened to the Right of Self-determination?”:
1) The inhabitants of Hong Kong have the right of self-determination because Hong Kong is a colony. Hong Kong has been generally regarded as a colony, notwithstanding the PRC’s sleight-of-hand in the UN in 1972. The International Court of Justice holds “that whatever the legal ties may have been at the time to colonization, they cannot now stand in the way of the application of the principle of self-determination.”
2) The inhabitants of Hong Kong have the right of self-determination because they constitute a “people”, that is, a cohesive national group. “Hong Kong is home to nearly six million inhabitants who have assiduously developed not only their own economic and social systems, but also a distinct and unique cultural identity” during “a century and a half of existence as a separate legal entity” with “clearly defined historical boundaries.”
3) Therefore, the PRC’s assertion of sovereignty over Hong Kong can be valid only if the people of Hong Kong determine freely that this should happen. Britain cannot legally make that determination on behalf of the people of Hong Kong.
4) But the people of Hong Kong were not permitted to make a free determination about their future, since no effective participation by them, or consultation with them, ever took place. The Joint Declaration “was a treaty negotiated between the colonial power and another sovereign state without any prior consultation with the people of Hong Kong,” and “at no stage in the events leading up to the enactment of the Basic Law were the people of Hong Kong given an opportunity of expressing their acceptance of that document.”
5) Hence, the Joint Declaration and the Basic Law lack legitimacy, and “the inhabitants of Hong Kong continue to enjoy the right of self-determination.” The transfer of Hong Kong to the PRC "can be validated only by means of an informed referendum, held at the appropriate stage, on the basis of universal adult suffrage, and conducted fairly and impartially, preferably by the United Nations."
It Is High Time We Put That Right of Self-determination to Use
My dear Hong Kong people, haven’t you grown tired of having others decide your lives?
It is the people who make a place, who make systems and institutions that run the place, not vice versa. True, we inherit the systems and institutions from the departed British regime, it does not mean we should avoid learning how to run the place ourselves, and submit the power of decision-making to people who are supposed to be our authorized delegates.
It is us, everyone of Hong Kong people, who should decide what to make of Hong Kong not the Chinese Communist Party, neither any other governments. The first step to respect ourselves as a people, as rightful citizens of Hong Kong, is to use the right of self-determination that was denied us by the British government before 1997 and is denied us now by the Central Government. Restoration of the right of self-determination should precede any current deliberations on political, economical or social policies because such deliberations are imposed on us by a regime that denies Hong Kong people’s right of self-determination.
https://m.facebook.com/notes/hong-kong-independence/respect-for-right-of-self-determination/770141853029101
