Marcel Hooijmaijers*

HONG KONG AND THE RIGHT OF SELF- DETERMINATION

INTRODUCTION

The Crown Colony of consists officially of , , Stonecutters Island and the . British sovereignty over the colony began after the defeat of Chinese forces in the First Opium War. On July 1, 1997, when the lease of the New Territories expires, the will relinquish sovereignty over these territories as well as those areas held in perpetuity.' will retrieve its sovereignty over Hong Kong after 156 years. The agreement, however, on which this transfer is based was reached without consultation of the people of Hong Kong. In other words, they were withheld the right of self- determination. But were they bearers of the right of self-determination? The right of self-determination has never captured the attention of the people of Hong Kong. One of the major reasons is that most people are not even aware of the existence of such right. The conclusion of the negotiations on the Joint Declaration and the enactment of the Basic Law were done without regard to that right. In this article, it is argued that the people of Hong Kong should have the right of self-determination. It starts

Marcel Hooijmaijers is Law student at Tilburg University. He has been working as a credit analyst for Rabobank in Jakarta and Hong Kong in 1996. ' This decision has never really been in doubt as both the British and Chinese understand that the island of Hong Kong could not remain under British control without the New Territories to support it. See Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Future of Hong Kong, September 26, 1984, at 8.

197 with the relevant history of the Chinese sovereignty claims. After that, the normal pattern of decolonization of British Dependent Territories is discussed. It continues with examining generally what the right of self- determination is and then proceeds to argue that the people of Hong Kong qualify to enjoy such right. Some of the arguments used to justify the withholding of the right of self-determination to the people of Hong Kong is put forward. Lastly, the effect of such right on the Joint Declaration and the Basic Law is examined.

1 RELEVANT HISTORY OF SOVEREIGNTY CLAIMS TO HONG KONG

Until the mid-seventeenth century, China sought to minimize its contacts with foreigners by restricting foreign trade to the port of Macau about 75 kilometers west of Hong Kong. These restrictions resulted from a long history of mutual distrust and misunderstanding between the Chinese and foreigners. In the late-eighteenth century, the Chinese were persuaded to open up more of their ports, a decision they soon regretted. By the middle of the nineteenth century, they again sought to restrict foreign trade to Canton.3 Under one of the new regulations, Western traders had to deal exclusively with a group of Chinese merchants,4 who were charged with fixed prices, regulating trade volume and policing the behaviour of the Westerners. Despite the history of restrictions, trade between China and the West flourished. And trade between the United Kingdom and China became particularly important: the British wanted Chinese tea; the Chinese wanted opium. William Jardine and James Matheson5 made fortunes by shipping opium6 from British India to coastal China. Although opium was officially illegal in China, its use was widespread: by the 1830s an estimated 10 million Chinese were addicted to the drug. When a Chinese mandarin was

2 Under administration of Portugal. Macau will revert to the People's Republic of China on December 20, 1999 under a similar agreement as Hong Kong. 3 Presently named Guangzhou. ' Called 'officially authorized merchants'. 5 Both established Jardine Matheson � Co., the oldest of the Hong Kong hongs (trading houses), now a respectable company (conglomerate) with large interests in whole Asia.

6 'Foreign mud' in Chinese.