 Good morning and law and welcome to law across the sea. My name is Mark Shklav. I'm the host of law across the sea. Law across the sea as you as the name sounds features lawyers who travel across the sea to and from Hawaii talking about what they've learned and the knowledge and customs they brought and taken with them on their travels. Today the title of my program is One Country, Two Systems. How is Hong Kong fairing as a special administrative region of China? With a big question mark after that. And my guest is Carol Peterson. Carol is a professor of law at the William S. Richardson School of Law here in Honolulu and is also a professor of law at the Matsunaga Institute for Peace and Conflict Resolution. Carol began her law career in New York, New York City and came to Honolulu before she moved to Hong Kong in 1989 where she taught law and worked with the Hong Kong Legislative Council for 17 years before returning to Hawaii in 2006. So she's had a lot of experience in Hong Kong and it is not, well it's kind of coincidental that today is Martin Luther King Day. Welcome Carol. Good to good to see you. Thank you very much. It's a pleasure to be here. And I think we're going to be talking about human rights and civil rights maybe in connection with this question. Now what is One Country, Two Systems and the special administrative region? What do they mean? What is the definition of those and from someone with a lot of experience? Please tell us what it is. Sure. One Country, Two Systems is a concept that was originally proposed by Deng Xiaoping. The idea is that territories that were not under the rule of China but China wanted to regain could come back and join China but maintain their own separate legal and economic systems. Deng Xiaoping originally proposed it with Taiwan in mind. Needless to say Taiwan is not interested and has made that very clear. But then in the early 1980s when Margaret Thatcher and the British needed to negotiate on the future of Hong Kong, they went to meet with the Chinese negotiators and Deng Xiaoping kind of pulled One Country, Two Systems out of his back pocket. That was not what the British wanted. The British were hoping to get an extension of the lease on the new territory section of Hong Kong. Now everybody knows this but the lease only affected the new territories. Actually, Hong Kong Island and Kowloon Peninsula were ceded in perpetuity from China to the British. But those were the treaties that were always referred to by the Chinese government as the unequal treaties because they were basically the result of the opium wars. So Deng Xiaoping took the position, we're not going to extend the lease beyond 1997 on the new territories, we want to regain all of Hong Kong on July 1st 1997. The British resisted that at first but eventually agreed and then the idea became let's take this concept of One Country, Two Systems and try to make it as concrete and detailed as possible. That was one thing that the British insisted on. And so they drafted the Sino-British Joint Declaration which is a bilateral treaty that's been registered with the United Nations and it provides that Hong Kong will become a special administrative region of China which it did on July 1st 1997. But will continue to have its own economic system, a capitalist system and continue to enjoy all the civil liberties that the people had become accustomed to and also continue its own separate common law legal system. And so that was the first special administrative region and then the same concept was applied to Macau which was a Portuguese colony and Macau became a special administrative region of China in 1999. So one country meant we're going to come back and be part of China, the motherland, the big China. Whether you want to or not because it's widely known and public opinion polls showed in the 1980s that the majority of people would have preferred to have either stayed British or if they couldn't stay British to become an independent city-state like Singapore. So they were not asked. And the majority of folks were where were they from? I mean they were from China, right? Right. When the British acquired Hong Kong island, historians say there were probably fewer than 10,000 people there. Maybe migrant fishermen lived there, some there were some indigenous residents of the new territories part. The reason the population of Hong Kong is now 7 million is because after the civil war and then again during the cultural revolution, loads of people left China, fled China and settled in Hong Kong because they preferred the stability and the relative freedom of a British colony even though it was not a democracy, they felt they had more rights and freedoms in Hong Kong. Some people continued to migrate on to places like Canada and the United States, other places because they were always afraid that Hong Kong might not be a permanent place of refuge. But it is particularly ironic that these people were handed back to China given that they had fled China. Yeah. And the folks had come from a place where they were afraid to lose their rights and they thought they would gain some sanctuary, I guess. And now they're in a place at that time 20 years ago when they're going to be returned. Right. They were their descendants, of course. You know, a lot of people who live in Hong Kong now were born in Hong Kong and they identify as Hong Kongers but they are, in general, they are the descendants of refugees. There are also a lot of people who came to Hong Kong as part of the British colonial administration. People migrated from India, from Pakistan, from Nepal, from western countries. Diverse area and it's also a wealthy area. It's more than the little village when the British got there, right? That's right. Hong Kong has a vibrant economy. At the time the joint declaration was ratified in the mid-1980s, there was a huge disparity in income between Hong Kong and mainland China. Not so much now, but because of that disparity, one of the principles of the joint declaration is that they have separate finances. So mainland China gave up any right to tax Hong Kong, which is rather significant. What you would normally think of as a sovereign right. Hong Kong also has its own monetary system. It still has the Hong Kong dollar. Separate monetary control. It's its own customs territory. Hong Kong was admitted to the WTO as a separate customs territory. It has its own immigration border. I have a Hong Kong ID card. I'm still a permanent resident of Hong Kong. I can go in and out of Hong Kong with my Hong Kong ID card. But I do, I need a visa if I want to go to mainland China. Okay. And so I can see they kept a lot of the economic benefits to Hong Kong. But what did China get out of this? What's the one countryside of this? What does China get? I mean, I can see that they're going to look at this jewel and I want it back. And maybe that was in Deng Xiaoping's mind is a way to get it. Sure. Well, a lot of it is nationalism and regaining territory that China felt had been, the Chinese government felt had been stolen from it. And so there's that nationalist desire to regain the original territory. I'm sorry, that you think is a sincere desire. I hear you saying that's more than just money. Oh yes, far more than just money. It's nationalism, national pride. And one of the things that was interesting to me is that in the mid-1990s when I traveled to Beijing, I was there in 1995 for the fourth world conference on women, the UN conference, because I do a lot of work on gender inequality. And we were in Tiananmen Square for the opening ceremonies. And as our little bus was leaving to go back to the conference center, I saw this massive clock. And I had heard about it, but I had not seen it yet. And it was a clock in Tiananmen Square ticking off the days, the hours, the moments until Hong Kong would be returned to China. And after Hong Kong was returned, they put up a clock from a cow. I think after that they had a clock for the Olympics or something like that. There's always a clock. And it does appeal to certain nationalist sentiments in China. A lot of people feel very strongly that it was wonderful that Deng Xiaoping made this deal to get Hong Kong back and to get it back peacefully. Because if they had not agreed to the One Country Two Systems model, I think a lot of Hong Kong people would have protested. And the United Nations might have been asked to intervene. Well, and so Deng was thinking of a way to get back this little island or this area into China for nationalistic reasons. And he was trying to do it in a peaceful way, but it's not a socialist way. And so he gave up something too. Yes. The Joint Declaration promises that the socialist system of China would not be practiced in Hong Kong and that there would be no significant changes to their way of life for at least 50 years. That is one thing that... And so a lot of people are wondering what will happen in 2047. It's scary how quickly it's coming. It seemed like a long way away at the time, but now it's coming rather quickly and people are beginning to wonder, because some people are very unhappy with the way it's turned out. There are some people who are arguing for independence in 2047. I don't think Hong Kong has a chance of getting independence, although I think they would do very well on their own. I don't think they'll ever get that. But other people are asking, will China at least agree to continue One Country Two Systems or might China argue for full integration, which the Hong Kong people are very frightened of? Well, it sounds to me like the deal was better for China than it was for the Hong Kong folks or the British. Yes, I agree with that. And that actually, he said 50 years and at the time everybody thinks 50 years is hell, but it's 20 years have gone pretty fast and there's been not a lot. I mean, I've heard and I'd like you to tell me a little bit about some of the problems that have occurred. Sure. I want to start by saying that, first of all, when we think about theories of autonomy in international law, the theory of giving a region a high degree of autonomy is something that is often suggested as a way to avoid armed conflict. And so when the One Country Two Systems model was detailed in the joint declaration, a lot of scholars who study autonomy models around the world said, wow, this is a great one, that it gives Hong Kong on paper more autonomy than most other autonomous regions. It's unusual for an autonomous region to be able to control its immigration border, to have its own currency, etc. It's a very completely different legal system. So on paper, it really does provide, I think for an exceedingly high degree of autonomy, what I like to call in my scholarship the potential for internal self-determination. You think of external self-determination as the right to secede, but internal self-determination means you respect the territorial integrity of the larger nation, you're not trying to leave, but you exercise this high degree of autonomy and have many differences in your territory from the rest of the territory. What hasn't worked? The reason the potential for problems arises in the fact that the joint declaration was very detailed on civil liberties, very detailed on financial independence, very vague on democracy, and of course the British didn't have a lot to argue with there because they had not given the people of Hong Kong democracy either. And so it was always an appointed governor, British would sail in and with the big hat, the colonial hat, and more recently they'd fly in, but it was an appointed governor from England, always a white man. The legislative council was originally completely appointed as well, and it really was not until they started to prepare Hong Kong for the transition to 1997 that the British started talking about democracy reforms. And originally the British had a proposal that would have created essentially a parliamentary democracy system in Hong Kong in time for 1997, that's where China objected. And you could see the Chinese government did not want Hong Kong to become fully democratic before they regained Hong Kong. So the way it works is the chief executive of Hong Kong, who is the replacement for the governor, has to be a Hong Kong citizen, not someone sent from Beijing, so that's good, but he is officially appointed by the central people's government. There's a selection committee that is indirectly elected in Hong Kong, but it's such a complicated system and it pretty much guarantees that this selection committee will not select someone that Beijing disapproves of. So the people of Hong Kong have been fighting for a long time for democracy. The legislative council is now half elected from geographic constituencies, but there's also these things called functional constituencies, which are again designed to guarantee the government has a certain number of pro-government legislators. And so the governance system has become almost, it's almost chaotic, because I feel sorry for the chief executive, because he doesn't have the support of the people. And so it's very hard for anyone who's this appointed chief executive to really govern Hong Kong. And let's talk a little bit more about that after our break. Okay, all right. Thank you. So all this hacking has become a major topic. I'm Andrew, the security guy. Join me on Hibachi Talk and learn a little bit more about it. I have my friend Gordo and my puppet buddy Angus. Check us out on Fridays at one o'clock on Think Tech Hawaii. Hi, I'm Marianne Sasaki and I'm here today to tell you about the Women's March on Washington on January 21st. It's an incredibly significant march in which both men and women are going to stand up for women's rights, women's reproductive rights, and all the rights we've accrued over the past 40 or 50 years. There's also going to be marches in each city on each island, there's one in Oahu. I urge you to join a march and stand up for women's rights. Aloha, my name is Danelia, D-A-N-E-L-I-A. And I'm the other half of the duo, John Newman. We are the co-hosts of Keys to Success, which is live on Think Tech live streaming network series, weekly on Thursdays at 11 a.m. Aloha. Aloha. We're really angry at the students because they felt they were threatening you. We are back. We are back. And we've been talking off air about what happened in Hong Kong. And I learned a little bit today because I was sure that this was all about money. That Hong Kong, I mean, I've been to Hong Kong and it's pretty impressive. And I even went to Hong Kong before it became part of China again. That comparison was tremendous. But you've told us that it's nationalism. And I am impressed with that. And I understand the colonial background of China and how people could be upset about that. I get it. And so tell me one more time, what does China get? What does China get? It's not just about money. It's a lot is the idea that China has risen again and it has recovered what the western colonial powers stole from it. You have to remember also that the Communist Party is not elected government in China. And but even if you're not elected government, you need to have some claim to legitimacy. And economic development has been one of the Chinese Communist Party's claims to legitimacy. But the economy is slowing down a little bit now in China. And I think a big part of their claim to legitimacy is expanding China as a world power. And that means it includes regaining Hong Kong, regaining Macau, building artificial islands in the South China Sea, flexing your muscle. Someday, I fear they may insist on regaining Taiwan. China does not need Taiwan, Hong Kong or Macau for their economy anymore. I mean, look at the economy. China's economy is so well developed. They don't need these territories for any other reason than nationalism. So it's a good viewpoint to know how to deal with China in the future because you have to think from a different standpoint, from a standpoint of this means more to them than money. They're willing to fight for this. Yes. Okay. And that this one country, two systems was a clever, a smart negotiating tool to get back what they wanted without firing a shot. That's correct. And so what remains with this one country, two systems? What's out there? What's part of it that is in discussion? Well, there are many things that I think have worked well. I mean, I have to tell you, sometimes people say, oh, Hong Kong is just another part of China now. And I always say, no, no, no. If you think that, go to Hong Kong on June 4th. And you will see thousands of people in Victoria Park lighting candles in memory of the victims of the Tianan Square massacre. That's the only city in China where you can do that and not be arrested. And I see the mainland Chinese tourists watching. They can't believe it. I can still say whatever I want in Hong Kong. I wrote, said, spoke, said whatever I want in Hong Kong. There's freedom of expression, freedom of religion, et cetera. But there have been some hiccups recently. And probably the scariest was the disappearance of the booksellers. And what happened is there was a bookstore called Cosway Bay Books. And frankly, it's not high quality literature. They are salacious, gossipy books about the leadership in the Chinese Communist Party. And the five owners and operators, the people who worked at this bookshelf, they were getting pretty rich because people are hungry for gossip about the Chinese Communist Party. Probably wasn't such a big deal as long as it was only Hong Kong people reading it because people in Hong Kong can read anything they want and the books are legal. But as more and more tourists were coming from mainland China and buying the books and even ordering the books to come to mainland China, the Chinese leadership clearly got nervous. There was a very salacious book that was supposed to come out in January, right now, this month. And instead, what happened is the five men who were running this bookstore, one by one, started disappearing. Three of them disappeared when they were actually traveling across the border into Shenzhen in China. That probably wasn't very smart in their part, but they didn't realize that they were going to be targets. One of them disappeared from Thailand. He was, although born in China, he's actually a Swedish citizen and he was living in Thailand. He disappeared. The last one, Li Bo, was the scariest. He disappeared from Hong Kong. And although the Chinese government has never admitted it, we are almost certain that he was abducted either by undercover agents who came across the border who have no authority to operate in Hong Kong or somebody they paid to take him. All of a sudden, he appeared, as did his colleagues, on mainland television confessing to crimes, but not explaining how he got across the border without his travel documents. He did not cross the border legally. He must have been smuggled across. He was eventually returned. All but one of them have been released now. And he won't talk. He won't say what happened. But the bookstore is empty. They're not publishing those books anymore. So that is the most frightening violation of One Country, Two Systems. And I have said that there's not going to be any reconciliation between the people of Hong Kong who are very angry right now and the central people's government until they explain what happens, apologize and promise that it will never happen again because that's such a violation. They're not admitting that anything happened. They're just saying, oh, he made his own way to China and voluntarily cooperated with the investigation, which of course is nonsense. We all know that's not true. So that's one of the biggest threats to One Country, Two Systems. The other big concern right now is because Hong Kong people are upset about these developments and also the delays in democracy, there are some people in Hong Kong who identify now as either being localist, they call themselves, or sometimes even pro-independence. And they're starting to argue for independence. And I'm quite frightened by that because I think it could bring about a crackdown from mainland China. And so we've had incidents where some legislators who are elected, they used very insulting language when they took their oath of office. Right, young, young folks. The young inspiration candidates, yeah. I mean, they were elected to the Legislative Council. In my opinion, they were very foolish. Instead of just taking their oath of office and doing work for the people of Hong Kong, they decided to use very insulting language and to carry flags that said Hong Kong is not China. Their oaths were invalidated because they didn't read the oath as written. And then, although they were going to be given another time to take the oath by the President of the Legislative Council, in between that time, an action for judicial review was requested by the chief executive and the court ruled that they had lost their opportunity. They had not taken the oath, they had refused to take the oath. What happened in between, which really should not have happened, is the National People's Congress Standing Committee issued an interpretation of Article 104 of the Hong Kong Basic Law, its regional constitution. It has the power to do so, but it doesn't do so very often. And it was seen as interfering in the court process, which is a really strong, serious potential interference in judicial independence of Hong Kong. The judge, however, in Hong Kong, I give him credit when he wrote his decision, he said, I'm not basing my decision on that. I'm basing it simply on my interpretation of the Hong Kong oath's ordinance and what they did. I accept the argument that they refused to take the oath and if you refuse to take the oath of office, you can't serve. So there was a good faith legal basis under law? I think it's arguable, yeah. And so what happened to them? I mean, what... So they are appealing now. They appeal to the court of appeal. They lost there, but I think they're trying to raise money to appeal to the court of final appeal, which is based in Hong Kong. That's another feature of one country, two systems. The highest court of appeal is in Hong Kong. There's no court in Beijing that receives appeals from Hong Kong. So we'll see what happens. I was quite disappointed in what they did though, because I do think it's just throwing more fuel on the flames here and it's going to escalate the conflict. So I've been trying to argue for a conflict resolution approach, whereby if the central people's government would agree to more progressive democracy reforms and also promise that things like the disappearance of Li Bo will never happen again. And if at the same time, the more moderate hand Democrats in Hong Kong would agree not to support any moves for independence, right? And perhaps to compromise on democracy, what the Occupy Central Forces wanted in Hong Kong was the right to nominate anyone for chief executive and then complete universal suffrage. Central people's government wants to screen the candidate, so you only have two or three candidates. Obviously, you need something in between. The basic law does say there should be a nominating committee. My argument is it could be an indirect election. Basically, the nominating committee is elected by the people of Hong Kong. They nominate the candidates. You have to ensure that there's genuine choice of candidates, and it's not just a puppet of China. And the basic law is basically what was used to put into fact the one country, two systems program, right? Right. We had first the joint declaration, which is a very detailed bilateral treaty, and then the basic law was drafted between 1985 and 1990. And it's the regional constitution for Hong Kong. But it is a national law adopted by the National Peoples Congress, and it can only be amended with their approval. It's very detailed. It's 161 articles, very detailed constitution. And so there are some protections in there. Oh, lots of protections. One of the most important, if you're interested in human rights, is that Article 39 of the Hong Kong Basic Law incorporates international human rights treaties right into Hong Kong's domestic law. And the most important one is the international covenants and civil and political rights, which is incorporated through Article 39 of the Basic Law and also through Hong Kong's Bill of Rights Ordinance. So that's why I couldn't leave Hong Kong, as I promised my parents after three years, because suddenly I was teaching in a legal system that had taken an international human rights treaty and sucked it right into their domestic legal system. And that's every international human rights lawyer's dream. You want to see what will happen to these treaties when they're enforced by an independent judiciary, right? Okay, now, we are almost at the end of our program. What does the future look like? Where are we going? And is there something you want to conclude? I think the future is really up in the air. Recently, I have heard some scholars in Hong Kong say that China is looking for a way to rebuild its relations with the Hong Kong people. They did just announce that the very unpopular chief executive, Xi Yilong, will not be seeking reelection. It's really a selection. And so there is now an interesting process now where three or four candidates will be running. And I think at least a couple of them are much more popular with the Hong Kong people than the current chief executive. The problem, though, is right now, anyone who is popular with the Hong Kong people probably won't be trusted by Beijing and vice versa, unless they make this compromise that I talked about where Beijing promises meaningful democracy, at least moderate democracy reforms, and no more disappearing booksellers, no more violations of that one country, two systems. And the Hong Kong people agree to abide by one country, two systems and not advocate for independence because that's like a red flag to the ball for Beijing. You know, and Martin Luther King would have probably thought how can people live together in peace and different people? People have to learn to compromise and respect each other's territorial boundaries.