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The International Law Response to the Hong Kong Electoral Reform Debate

Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

More than two months into Hong Kong’s pro-democracy protests, the city’s police force – armed with teargas and, in some instances, assisted by vigilantes – renewed its assault on protest encampments in the districts of Mongkok and Admiralty.  As debate continues to rage over the municipal law implications of civil disobedience and the use of private persons seeking civil injunctions to enforce public rights of way, the international law implications of the underlying dispute – over Chief Executive electoral arrangements for 2017 – are finally being discussed internationally.

On October 23, 2014, the UN Human Rights Committee in Geneva expressed its concern over Beijing’s proposal for the 2017 Chief Executive elections.  Under these arrangements, a Nominating Committee that was unrepresentative of the Hong Kong public would “vet” candidates for political fealty to Beijing.  The Committee’s draft report following up on its Concluding Observations on Hong Kong noted the Hong Kong Government’s consultations on electoral reform, but remained dissatisfied:

The Committee notes the public consultation carried out by the State party on the selection methods for the CE [Chief Executive] in 2017 and on the election of the LegCo [Legislative Council] in 2016.  The Committee also notes the decision of 31 August 2014 of the NPCSC [National People’s Congress Standing Committee].  The Committee requires additional information on the specific method for selecting the CE and the LegCo by universal suffrage, which includes the right to vote and the right to stand for election, and its compatibility with the Covenant.  The Committee also requires information on measures taken to withdraw the reservation to article 25(b) of the Covenant.

The Committee’s position seems to be that Article 25(b) of the ICCPR – guaranteeing both the right to vote and the right to stand for election – applies to elections for Chief Executive, notwithstanding the Hong Kong Government’s position that the reservation to Article 25(b) made by the UK in 1976 on Hong Kong’s behalf remains in force.  This may be a clarification of – or perhaps a partial retreat from – its Concluding Observations from 2013, which appeared to accept that the reservation remained in place, without citing its previous Concluding Observations.

The Committee’s earlier Concluding Observations argued that the reservation was defunct with respect to legislative elections, on the basis that the reservation could no longer apply once an elected legislature was put into place.  The same reasoning applies to the replacement of the colonial Governor with a Chief Executive ostensibly chosen through elections.

The United Kingdom – a signatory to the Joint Declaration of 1984, under which Hong Kong was returned to China in 1997 – is in a unique position to respond to China’s broken promises of democratisation.  Yet, to date, its response has been tepid.  The Foreign Office infamously responded to Beijing’s decision requiring political vetting of candidates with a statement that the decision would “disappoint” Hong Kong’s democrats.  Yet even Lord Patten, Hong Kong’s last colonial governor, was restrained in his criticisms of Whitehall’s approach.  During a hearing by the House of Commons Foreign Affairs Committee, Patten dismissed the Foreign Office’s six-monthly reports as “anodyne” documents that gave little indication of facts on the ground and agreed with the suggestion that the official response had been dishonourable.  Nonetheless, he was wary of the argument that China had breached the Joint Declaration itself, referring to it as “pretty heavy-duty and pretty unfair” in light of the UK’s original reservation to Article 25(b) of the ICCPR.

Parts of the United States government, too, have begun to act.  The Congressional-Executive Commission on China held a hearing on November 20, 2014, in which speakers emphasised the need for the United States – and the international community – to continue expressing their concern for developments in Hong Kong.  And a bicameral, bipartisan group of legislators – a rarity in the United States – has proposed legislation to amend the Hong Kong Policy Act 1992, reviving the requirement that the Secretary of State prepare annual reports on conditions in Hong Kong.

Ironically, the Chinese response has been far more effective in bringing the international law issues to the fore.  In addition to decrying “interference” in China’s domestic affairs, Beijing has taken the extraordinary step of blocking a Foreign Affairs Committee delegation from visiting Hong Kong, prompting the House of Commons to hold an emergency debate on December 2.  Sir Richard Ottaway, chair of the Committee, summarised the Chinese position in the following terms:

At the heart of the Chinese argument, conveyed to me at the meeting, is that the joint declaration signed by China and the United Kingdom is now void and only covered the period from the signing in 1984 until the handover in 1997.  Given that the Chinese Government gave an undertaking that the policies enshrined in the agreement would remain unchanged for 50 years, this is a manifestly irresponsible and incorrect position to take.  It is a live agreement, which is why the Foreign Office rightly continues to produce its six-monthly reports on Hong Kong.  Britain is a party to over 18,000 international treaties and agreements.  To suggest that we have no right to assess the performance of our counter-parties to such agreements is ridiculous.

This appears to be the first time that the Chinese diplomatic corps has attempted to engage with the international law questions raised by events in Hong Kong.  Yet the Chinese position flies in the face of the wording of the Joint Declaration, which states that China’s basic policies towards Hong Kong “will remain unchanged for 50 years” (Article 3(12); see also Annex I, Part I).  China’s threat to deny entry to the Foreign Affairs Committee also calls Beijing’s compliance with Annex I, Part XIV of the Joint Declaration – which empowers Hong Kong to set its own immigration controls – into question.

Beijing’s histrionic reaction to international scrutiny suggests that such scrutiny should continue.  As a Human Rights Committee member observed during proceedings in Geneva, the ICCPR was the only international instrument protecting the Hong Kong population.  In the continued absence of political willingness in the Hong Kong and Beijing governments to allow meaningful democratisation, the nascent invocation of international law to address Hong Kong’s crisis of governance may become one of the last remaining avenues to press for change.

Suggested Citation: Alvin Y.H. Cheung, The International Law Response to the Hong Kong Electoral Reform Debate, Int’l J. Const. L. Blog, Dec. 10, 2014, available at:  http://www.iconnectblog.com/2014/12/the-international-law-response-to-the-hong-kong-electoral-reform-debate

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Published on December 10, 2014
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