Guest Post: The International Law Case for Democracy in Hong Kong

[Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.]

After two years of increasingly acrimonious debate over Hong Kong’s electoral reforms for 2017, the city’s pro-democracy movement has finally attracted global concern.  A consistent theme of international responses has been that Hong Kong’s democratisation should occur in accordance with the Basic Law, the city’s quasi-constitution.  The White House’s official response to a petition supporting democracy in Hong Kong was that it supported universal suffrage in Hong Kong “in accordance with the Basic Law.”  Similarly, Richard Graham MP, who heads the All Party Parliamentary Group on China, expressed the hope that further consultations would ensure a satisfactory choice that remained “within China’s Basic Law” (a misnomer that uncomfortably emphasised where the veto power over Hong Kong’s electoral reforms lay).  The implication of these statements is that the debate over how Hong Kong should choose its own leader is purely a municipal law matter.  UN Secretary-General Ban Ki-moon made that point even more forcefully when his spokesperson stated that the Hong Kong protests were “a domestic matter.”  These accounts, framed purely in domestic law terms, are misleading. The 1984 Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration) and the International Covenant on Civil and Political Rights (ICCPR) – properly interpreted – both require that the Hong Kong electorate have a genuine choice in its leader.

Chief Executive Elections in Hong Kong and the National People’s Congress Standing Committee (NPCSC) Decision of August 31, 2014 (2014 Decision)

Hong Kong’s Chief Executive is currently chosen by a 1,200-strong Election Committee, the composition of which is carefully designed to favour pro-business and pro-Beijing interests.  The “race” in which Leung himself was selected, although more competitive than previous “elections,” was heavily influenced by the Beijing Government and its representatives.  Although Article 45 of the Basic Law provided that the “ultimate aim” was for Hong Kong to elect its Chief Executive by universal suffrage, the deadline for universal suffrage has been repeatedly delayed by the NPCSC, which retains the power to interpret the Basic Law and to make decisions about the necessity of electoral reform.  The 2014 Decision ostensibly laid down the framework for universal suffrage in 2017, after months of consultation by the Hong Kong Government.  Instead, it provided the flashpoint for the student protests that in turn triggered the Umbrella Revolution. Under the 2014 Decision:

1)      The NPCSC confirmed that the Chief Executive owed responsibilities both to the Hong Kong Special Administrative Region and to the Beijing Government;
2)      As a result, any Chief Executive would be required to “love the country and love Hong Kong” – a phrase that, in practice, means that pro-democracy politicians will be barred from candidacy;
3)      Only 2 or 3 candidates would be permitted to run;
4)      Candidates would be chosen by a 1,200-strong Nominating Committee; and
5)      Support from at least half of the nominators would be required for candidacy.

The upshot of the 2014 Decision, and its various restrictions on nomination, is to ensure that only persons who Beijing deems politically palatable can run.  Lawrence Lessig aptly described the framework of the 2014 Decision as “Tweedism updated.”

The Joint Declaration

On its face, Article 3(4) of the Joint Declaration permits Hong Kong’s Chief Executive to be appointed after either elections, or consultations.  It contains – as Hong Kong’s current Chief Executive CY Leung wrote in the Financial Times – no specific prescriptions regarding the election or consultation process.  However, such an interpretation ignores basic principles of treaty interpretation.  The requirements under Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) – to which both China and the UK are parties – govern the interpretation of the Joint Declaration, yet have been routinely ignored by the Hong Kong and Beijing Governments. I argue that the Article 31(1) factors point towards an interpretation of the Joint Declaration that, contrary to Beijing’s assertions, imposes substantive requirements on how Hong Kong’s Chief Executive can be elected.

First, any interpretation of “elections” or “consultation” that permits a purely formal process in which the Hong Kong electorate “elects” a candidate pre-ordained by the Nominating Committee strips such terms of any reasonable meaning.  Second, the Joint Declaration was intended to guarantee that Hong Kong enjoyed a “high degree of autonomy,” except in foreign affairs and defence.  Giving the Hong Kong public a genuine choice in electing its Chief Executive can only be consistent with that purpose, without necessarily undermining Chinese sovereignty.  Third, to the extent that the Basic Law is acknowledged by both China and the UK to be subsequent practice in applying the Joint Declaration, there is agreement that elections should be by “universal suffrage.”  Fourth – and most importantly – the Joint Declaration also declares, in Chapter XIII of Annex I, that the provisions of the ICCPR applicable in Hong Kong shall remain in force after 1997.

The Applicability of ICCPR Article 25(b)

Under ICCPR Article 25(b), citizens enjoy the right “[to] vote and be elected at genuine periodic elections which shall be by universal and equal suffrage…” without unreasonable restrictions.  However, the applicability of Article 25(b) to Hong Kong has long been contentious.  When the UK acceded to the ICCPR on behalf of Hong Kong, it entered a reservation to Article 25(b).  Nonetheless, the Human Rights Committee has long taken the view that the reservation ceased to apply to elections for Hong Kong’s Legislative Council once an elected legislature was established.(Human Rights Comm., Concluding Observations of the Human Rights Comm (H.K.): U.K., U.N. Doc. CCPR/C/79/Add.57 (1995), ¶ 19.) The same reasoning would apply with equal force to Chief Executive elections; once the office of Chief Executive is filled through elections, such elections must comply with Article 25(b).  Curiously, the Committee’s Concluding Observations of 2013 in respect of Hong Kong appeared to accept that the reservation remained in force, without citing its previous Concluding Observations or explaining its departure from its previous position. (Human Rights Comm., Concluding Observations of the Human Rights Comm.: H.K., China, U.N. Doc. CCPR C/CHN-HKG/CO/3 (2013), ¶ 6.)

If one accepts that ICCPR Article 25(b) applies to Hong Kong’s Chief Executive elections, limits on the right to stand for election may not be subjected to unreasonable restrictions.  General Comment 25 adds that limits on the right to stand for election may only be based on “objective and reasonable criteria.”  The Human Rights Committee has consistently rejected political affiliation as an “objective and reasonable” criterion, (Chiiko Bwalya v Zambia, Commc’n No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993); Lukyanchik v Belarus, Commc’n No. 1391/05, U.N. Doc. CCPR/C/97/D/1392/2005; Sudalenko v Belarus, Commc’n No. 1354/05, U.N. Doc. CCPR/C/100/D/1354/2005.) including in a series of cases regarding arbitrary denial of registration to electoral candidates. (Lukyanchik and Sudalenko)  Indeed, by Beijing’s own admission, the pre-selection of candidates for political pliancy is not a criterion that could be legally defined.

Counter-Argument: The Source of Authority for the Basic Law

Shigong Qiang of Peking University has argued that Hong Kong’s “high level of autonomy” flows solely from authority from the Central Government, and that the Basic Law itself derives its authority solely from the PRC Constitution. (Shigong Qiang, ‘國際人權公約在香港：被誤讀的國際條約’ [The ICCPR in Hong Kong: The Misinterpreted International Treaty] Mingpao (HK, 25 Aug 2014).)  Yet this view does not appear to be universally shared even among Mainland academics.  The late Xiao Weiyun, one of the Mainland’s pre-eminent authorities on the Basic Law, conceded that the obligation to enact the Basic Law flowed from the Joint Declaration. (Xiao Weiyun, One Country Two Systems: An Account of the Drafting of the Basic Law 13(2001).  On Xiao see Jimmy Cheung, Basic Law ‘Guardian’ Dies at 78, S. China Morning Post (H.K.), Jul. 16, 2004.)  Nor does the text of the Basic Law support Qiang’s argument; the Preamble to the Basic Law states that it was enacted “to ensure the implementation of the basic policies of the [PRC] regarding Hong Kong.”  The “basic policies” referred to could only be those set out in Article 3 of, and Annex I to, the Joint Declaration.

Implications for the Electoral Reform Debate

If the Joint Declaration and ICCPR demand genuine universal suffrage in Hong Kong, then China has not merely a domestic law obligation to democratise Hong Kong, but an international law obligation.  This in turn empowers the UK, and potentially other parties to the ICCPR, to ensure China fulfils its obligations.  Writing in the Financial Times, Hong Kong’s last colonial governor Lord Patten of Barnes sought to remind Westminster that the United Kingdom had not merely a political and moral obligation to monitor developments in Hong Kong, but a legal obligation.  In light of ongoing developments, there is a compelling legal case for Whitehall to speak up in Hong Kong’s defence. Yet there are few signs that the United Kingdom’s long-standing policy of neglect will change.  In the wake of the 2014 Decision, the Foreign Office stated merely that the 2014 Decision would “disappoint” Hong Kong’s democrats, without any reference to the Joint Declaration.  Although Prime Minister David Cameron has now stated that he is “deeply concerned” about events in Hong Kong, it remains to be seen whether this will translate into a change in Foreign Office policy.