By Alvin Y.H. Cheung
Hong Kong’s pro-democracy movement has captured the world’s attention. Images of yellow ribbons and umbrellas circulate on social media, and various governments and international figures have weighed in on the situation. A consistent theme has been that Hong Kong should be granted democracy in accordance with the Basic Law , the city’s constitutional instrument, implying that Hong Kong’s process of democratization is governed exclusively by domestic law. In reality, two international treaties, the Sino-British Joint Declaration of 1984 and the International Covenant of Civil and Political Rights (ICCPR), if properly interpreted, demand that the Hong Kong electorate have a genuine choice in its leader.
On its face, the Joint Declaration merely requires that the chief executive be selected by either elections or consultations. The story does not end there though. Under Article 31(1) of the Vienna Convention on the Law of Treaties (to which both China and the UK are parties), three key rules govern the interpretation of the Joint Declaration. First, the Joint Declaration must be interpreted in good faith. Its terms must be interpreted in a way that give them actual meaning. Second, words in the Joint Declaration should be given their ordinary meaning in the context in which they appear. Third, the Joint Declaration must be interpreted in light of its purpose, which is to secure a high degree of autonomy for Hong Kong while preserving Chinese sovereignty.
Each one of these factors points towards an interpretation of the Joint Declaration that requires genuine universal suffrage. First, any interpretation of “elections” that permits a purely formal process–for instance, one in which the Hong Kong public are only permitted to “elect” a pre-ordained candidate, as Beijing currently proposes–strips the term of its ordinary meaning. Second, the main purpose of the Joint Declaration was to secure a “high degree of autonomy” for Hong Kong, except in foreign affairs and defense. Depriving the Hong Kong electorate of genuine choice in its leader frustrates that purpose. Third, the Basic Law should not be viewed purely as a domestic legal instrument, but as an implementation of the Joint Declaration. Article 45 of the Basic Law, which states the “ultimate aim” for Hong Kong is to elect its chief executive by universal suffrage, should therefore be viewed as a provision that applies the Joint Declaration and should shape the way in which the Joint Declaration is interpreted.
The Joint Declaration also provides that the provisions of the ICCPR applicable to Hong Kong would remain in force after 1997, the year when Hong Kong switched sovereignty from British to Chinese hands. Article 25(b) of the ICCPR demands that limits on the right to stand for election be based on “objective and reasonable criteria.” The UN Human Rights Committee, responsible for overseeing implementation of the ICCPR, has also maintained that political affiliation is not a permissible criterion for excluding people from that candidacy. However, successive Hong Kong governments have argued that Article 25(b) of the ICCPR does not apply to Hong Kong.
When the UK initially signed onto the ICCPR, on Hong Kong’s behalf, it entered a reservation to Article 25(b), exempting the UK from having to create an elected executive or legislature in Hong Kong. Nonetheless, the UN Human Rights Committee has long considered that this reservation ceased to apply to Hong Kong’s legislature once it was constituted by elections. In connection with elections for Hong Kong’s chief executive, similar reasoning would likely apply.
The international community’s recent concern for Hong Kong is welcome, but actions speak louder than words. Even Beijing, in its decision ruling out genuine universal suffrage, recognized that the outside world, in the form of foreign investors, has a genuine interest in Hong Kong’s stable governance. If the governments of the world believe that Hong Kongers deserve a genuine choice in their chief executive, it is high time they consider the use of international law to hold Beijing to its promises.
Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.