Hong Kong Independence
Photographer: Anthony Kwan/Bloomberg via Getty Images

One of the Chinese Communist Party’s (CCP) most persistent bugbears are separatist threats—real or imagined—on the fringes of its empire. The most recent manifestation of this concern has been the CCP’s response to the ongoing unrest in Hong Kong. On May 20, 2020, the National People’s Congress adopted a decision regarding “national security” in Hong Kong (H/T to China Law Translate for the translation). According to the decision’s preamble, “illegal activities such as ‘Hong Kong independence,’ splitting the country, and violent terrorist activities have seriously endangered the sovereignty, unity, and territorial integrity of the country.” Such is the extent of the CCP’s agitation that it must combat independence even on the linguistic front, putting the characters in quotes to stress the unthinkable nature of the concept.

Elsewhere, the CCP has justified its reeducation camps in Xinjiang by “claiming they are for ‘education transformation’ and ‘vocational training’ in the fight against the ‘three evils’ of ‘separatism, terrorism and extremism.’” There are also “separatist elements” at work in Tibet. Even the CCP’s militaristic designs on Taiwan are framed in delusional “anti-secession” terms.

The existence of secessionist movements within China is not in question. Xinjiang and Tibet have had independence movements for a long time. And though Hong Kong independence was until recently a fringe idea, by December 2019 it was supported by 19% of Hongkongers—and it is reasonable to assume that support has only grown in the following months. Critics of CCP policies in places like Hong Kong point out that they should be free to have this stance. This would be consistent with international law. Article 1 of the International Covenant on Civil and Political Rights, of which China is a signatory, declares,

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.

Defenders of the CCP often seek to deflect criticism over the repression of separatist views by drawing comparisons to the West’s own secessionist movements, denouncing what they perceive as some Western countries’ hypocrisy. “Do you think the United States would allow Hawaii and California to declare independence?”, they ask. (This particular comment was taken verbatim from Twitter). As the debate over Hong Kong becomes more contentious, more comments like this are popping up on social media, but this line of argument is not new.

There are two glaring problems with this particular tack. First, whatever practical obstacles may stand in the way of, say, Texas or California independence, Texans and Californians are free to express secessionist views. The president of the Texas Nationalist Movement can and does tell Atlantic that Texans “deserve their own land” without fear of persecution. Meanwhile, in neighboring Canada, the secessionist Bloc Québécois holds more than a third of Quebec’s seats in the House of Commons. In Spain, parties that support the independence of Catalonia and the Basque Country, such as Esquerra Republicana de Catalunya, are represented in the Spanish Parliament. The Scottish Nationalist Party not only holds 47 of Scotland’s 59 seats in the House of Commons, but also governs Scotland. Despite calling for Scottish independence, First Minister Nicola Sturgeon can sit down with the British prime minister without being told she will stink for 10,000 years.

Scotland also evinces the second big flaw with the secession whataboutism, which is that there are actual instances of Western countries telling one of their regions they are free to go. In 2014, Scotland held a referendum on independence, with the support of the British government. As then-Prime Minister David Cameron stated,

I always wanted to show respect to the people of Scotland. They voted for a party that wanted to have a referendum. I’ve made that referendum possible and made sure it’s decisive, it’s legal and it’s fair, and I think that’s right for the people of Scotland.

In 1995, Quebec also held a referendum on independence. Though the referendum was not the result of negotiations between Quebec and the federal government, the referendum was allowed to take place, and then-Prime Minister Jean Chrétien made the electoral case against independence. Questions remain about what would have happened had Quebec voted for independence. We know now that Chrétien “had a speech ready to be delivered in the event of a [pro-independence] vote, outlining that the referendum question had been too ambiguous to be binding, and that he would interpret the vote as indicating a dissatisfaction with the status quo, requiring negotiation but not separation.” However, Chrétien was concerned that Quebec’s pro-independence government would proceed with a secessionist plan, “seeking recognition from foreign governments and dismantling links with the federal government.”

At that point, Chrétien would not argue with mere words. He would need a game-changer. His plan was to move quickly, within a month or so, to ask Québecers another question in another referendum: Do you want Québec to separate from Canada? If those voting yes had a clear majority — not just 50 per cent plus one but some unspecified threshold — he planned to hold a national referendum on what position the federal government should take.

Chrétien was not prepared to see the country break up on a trick question and a narrow margin of support. But he was prepared to ask Québecers a direct question and live with the result.

Chrétien was prepared to question the legitimacy of the referendum and to subordinate Quebecers’ wishes to those of Canadians as a whole. However, he appears to have understood that a compelling demand for independence could not have gone unanswered.

Turning to the United States, the Civil War, arguably the most important event in the country’s history, was in essence a war over the secession of the Southern states (with the secession attempts motivated, of course, by a desire to maintain slavery). In fact, the war is sometimes called the War of Secession, particularly in other countries. It must be pointed out, of course, that the world is a very different place now than it was in 1861, and the Civil War offers little practical guidance on how the U.S. federal government would deal with a similar challenge today—especially if the fundamental issue of slavery was not at the heart of a secession drive.

Perhaps a more useful example of contemporary U.S. approaches is that of Puerto Rico, a U.S. territory that has held multiple votes on its political status, the most recent in 2017. In all of these, independence was among the voters’ options. Moreover, when he visited Puerto Rico in 2011, President Obama proclaimed, “when the people of Puerto Rico make a clear decision, my administration will stand by you.” In fact, the Obama administration wanted Puerto Rico to hold a referendum “on whether the territory should be independent or part of the U.S.” In addition, the Puerto Rican Independence Party is represented in the island’s legislature, and fields candidates to represent Puerto Rico in Congress.

A legitimate objection to this example is that Puerto Rico is not an integral part of the United States, as are the 50 states and the District of Columbia. A line of U.S. Supreme Court decisions known as the Insular Cases have long established that Puerto Rico is not a part of the United States for all purposes. For instance, in Downes v. Bidwell (1901), the Court held that Puerto Rico is “a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.” In Balzac v. Porto Rico (1922), it was held that Sixth Amendment protections regarding jury trials did not extend to Puerto Rico.

The Insular Cases can be understood as a recognition that Puerto Rico was different than the 50 states, at least in some ways—a reality that continues to this day. Due to its special status, the federal government’s views regarding Puerto Rican independence should be viewed with particularity. The question remains though: what would happen if a state of the Union, like Texas or California, held a referendum on independence?

The U.S. Constitution does not establish a process for secession but it does not explicitly prohibit it either. We must therefore look to the Supreme Court for guidance. In Texas v. White, an 1868 case that dealt with fallout from the Civil War, the Supreme Court held that Texas’ “ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

Nine years later, in Williams v. Bruffy, considering the validity of legislation enacted by the Confederacy, the Court held:

The United States, during the whole contest, never for one moment renounced their claim to supreme jurisdiction over the whole country and to the allegiance of every citizen of the republic. They never acknowledged in any form or through any of their departments the lawfulness of the rebellious organization or the validity of any of its acts except so far as such acknowledgment may have arisen from conceding to its armed forces in the conduct of the war the standing and rights of those engaged in lawful warfare. They never recognized its asserted power of rightful legislation.

These decisions clearly establish the Supreme Court’s view that the unilateral secession of the Southern states was unconstitutional. However, the White court did not categorically reject the possibility of lawful secession. Considering the indissoluble links between Texas and the rest of the states, it held that “there was no place for reconsideration, or revocation, except through revolution, or through consent of the States.” The Court could have closed the door on secession altogether, but instead it chose to explicitly distinguish a negotiated departure from the unilateral, violent actions of the Confederate states. This is a remarkable concession, just three years after the end of the Civil War.

Whatever the intricacies related to U.S. jurisprudence on secession, what is clear is that the CCP’s approaches are unsupported by practices in the U.S. and Western countries that have dealt with the same issues or by international law. Even when the emotions of the Civil War were still raw, the U.S. Supreme Court recognized that, through negotiation, a state could leave the Union. The CCP, on the other hand, does not even recognize the right of individuals in its territories to express support for their independence. It does not even allow the word “independence” to be used in the context of Hong Kong without quotation marks.

Furthermore, the CCP and its apologists should not limit their analysis to the United States (and even then, to speculation about what would happen if a state wanted to secede in the present). If Scotland, which has been a part of the United Kingdom since 1707, can hold a referendum on independence with the support of the British government, why can’t Tibet—an independent nation until 1959—do likewise? Since China supports Palestinian independence why does it clamp down on East Turkestan independence? Why can’t supporters of Hong Kong independence hold seats in the Hong Kong’s Legislative Council, as Quebec, Catalan, Basque, Welsh, and Scottish secessionists do in their respective national parliaments?

To answer these questions, look not to the CCP’s views on China’s territorial integrity, but rather to its complete disregard for the will of its citizens. After all, China’s citizens cannot vote for their leaders so why should we expect they would be allowed to vote for anything else?

Print:
EmailTweetLikeLinkedIn
Photo of Fred Rocafort Fred Rocafort

Fred is a former diplomat who joined Harris Bricken after more than a decade of international legal experience, primarily in China, Vietnam, and Thailand. His wide range of experience includes starting and operating his own business in Asia, working as an in-house counsel…

Fred is a former diplomat who joined Harris Bricken after more than a decade of international legal experience, primarily in China, Vietnam, and Thailand. His wide range of experience includes starting and operating his own business in Asia, working as an in-house counsel for a Hong Kong-based multinational, as well as many years as a State Department official, providing a client-centric perspective to his legal work. Fred co-hosts Harris Bricken’s weekly Global Law and Business podcast, which covers legal and economic developments in locales around the world to decipher global trends in law and business with the help from international guests.

Fred began his career overseas as a U.S. vice-consul in Guangzhou, China, adjudicating thousands of visa applications and advocating for fairer treatment of American companies and citizens in China and for stronger anti-counterfeiting enforcement. After entering the private sector, Fred worked at a Shanghai law firm as a foreign legal advisor and later joined one of the oldest American law firms in China. He also led the legal team at a Hong Kong-based brand protection consultancy, spending most of his time out in the field, protecting clients against counterfeiters and fraudsters from Binh Duong to Buenos Aires.

Fred is an ardent supporter of FC Barcelona—and would be even in the absence of Catalan forebears who immigrated to Puerto Rico in the mid-1800s. An avid explorer of Hong Kong’s countryside, he now spends much of his free time discovering the Pacific Northwest’s natural charms.