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Hong Kong's Democratization and China's Obligations Under Public International Law Alvin Y.H

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Hong Kong's Democratization and China's Obligations Under Public International Law Alvin Y.H Brooklyn Journal of International Law Volume 40 | Issue 2 Article 3 2015 Road to Nowhere: Hong Kong's Democratization and China's Obligations Under Public International Law Alvin Y.H. Cheung Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Alvin Y. Cheung, Road to Nowhere: Hong Kong's Democratization and China's Obligations Under Public International Law, 40 Brook. J. Int'l L. (2015). Available at: https://brooklynworks.brooklaw.edu/bjil/vol40/iss2/3 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. ROAD TO NOWHERE: HONG KONG’S DEMOCRATIZATION AND CHINA’S OBLIGATIONS UNDER PUBLIC INTERNATIONAL LAW Alvin Y.H. Cheung* INTRODUCTION:WE’RE NOT LITTLE CHILDREN ................467 I. BACKGROUND AND HISTORY ..........................................475 A. The United Kingdom’s Acquisition of Hong Kong ..475 B. Background to the Joint Declaration......................476 C. The Drafting of the Basic Law ................................478 D. 1990-1997: A Day Late and a Dollar Short............479 E. 2003-2004: Beijing Usurps Initiative......................481 F. 2007: Jam Tomorrow...............................................484 G. 2009-2010: Divide and Conquer .............................485 H. 2012: Playing Charades ..........................................487 I. The Current Debate...................................................488 1. 2013: The Moderates Lose Patience.....................489 2. 2014: Beijing’s Gloves Come Off; Hong Kong’s Umbrellas Come Out ................................................494 3. Who Gets to Nominate? ........................................498 II. APPLICABLE LAW..........................................................504 * Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law; of the Hong Kong Bar, barrister (non-practicing). I am grateful to Professors Jerome A. Cohen, Ira Belkin, and Margaret Satterthwaite, and to Alyssa S. King (J.D., Yale 2012) for their comments on earlier versions of this article. I am also in- debted to Gloria Chan (LL.B., HKU 2016) for her assistance with preliminary factual research. All errors remain my own. 466 BROOK. J. INT’L L. [Vol. 40:2 A. The Contested Basis of Hong Kong’s New Legal Order ......................................................................................504 B. The PRC’s Attitude Toward Treaties ......................506 1. The Vienna Convention on the Law of Treaties (“VCLT”) ....................................................................506 2. Customary International Law..............................508 C. The Joint Declaration..............................................509 D. The Basic Law .........................................................510 E. The ICCPR...............................................................513 1. Interpreting the ICCPR........................................514 2. Status of the Reservation to Article 25(b)............515 3. Universal Suffrage and the Right to Vote ...........520 4. Equal Suffrage ......................................................521 5. The Right to Be Elected........................................521 F. The Right to Self-Determination .............................523 G. A Right to Democracy in Customary International Law? ......................................................................................523 H. Breaches of Public International Law ....................526 1. The Joint Declaration ...........................................526 2. The ICCPR ............................................................530 3. Customary International Law..............................531 III. REMEDIES ...................................................................531 A. The Joint Declaration..............................................532 B. The ICCPR...............................................................532 C. Customary International Law: Obligations Erga Omnes? .........................................................................533 D. Means of Enforcement .............................................535 1. Absence of Individual Right of Petition ...............535 2. The PRC’s Refusal to Accept ICJ Jurisdiction ....536 2015] HONG KONG AND DEMOCRACY 467 3. Difficulty in Enforcing Obligations Erga Omnes.537 4. Potential Solutions................................................537 CONCLUSION:THEY’LL MAKE A FOOL OF YOU ..................542 “Today, we have entered the home stretch to universal suf- frage.” – Carrie Lam Cheng Yuet-ngor, Hong Kong Chief Secretary, December 4, 2013 “[T]he principle that the Chief Executive has to be a person who loves the country and loves Hong Kong must be upheld.” – National People’s Congress Standing Committee, August 31, 2014 “We do not consider that the terms of the 31 August . deci- sion offer ‘genuine choice’ in any meaningful sense of the phrase, nor do we consider the decision consistent with the principle that Hong Kong should enjoy a high degree of autonomy.” – U.K. House of Commons Foreign Affairs Committee, March 6, 2015 INTRODUCTION:WE’RE NOT LITTLE CHILDREN n August 31, 2014, the National People’s Congress Stand- Oing Committee (“NPCSC”) ruled out democratic elections Carrie LaM Cheng Yuet-ngor, H.K. Chief Sec’y for Administration, Speech to Legislative Council (Dec. 4, 2013), http://www.news.gov.hk/tc/rec- ord/html/2013/12/20131204_141632.shtml, author’s translation. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang- gang Tebie Xingzhengqu Xingzheng Zhangguan Puxuan Wenti He 2016 Nian Lifa Hui Chansheng Banfa De Jueding (全國人民代表大會常務委員會關於香港特別行政區行政長官普選問題和 2016 年立 法會產生辦法的決定) [Decision of the Standing Committee of the National Peo- ple’s Congress on Issues Relating to the Selection of Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Admin- istrative Region In the Year 2016] (adopted by the Standing Comm. Nat’l Peo- ple’s Cong., Aug. 31, 2014). Foreign Affairs Committee, The UK’s Relations With Hong Kong: 30 Years After the Joint Declaration, 2014–15, H.C. 649 (U.K.). 468 BROOK. J. INT’L L. [Vol. 40:2 for Hong Kong’s legislature in 2016 and for its Chief Executive in 2017.1 The NPCSC’s Decision (“the 2014 Decision”) declared that the implementation of universal suffrage in Hong Kong im- plicated China’s “sovereignty, security and development inter- ests.”2 It therefore imposed strict conditions on nomination and candidacy to ensure that candidates were politically acceptable to Beijing.3 Meanwhile, Beijing inveighed against collusion with external forces by democratic activists in Hong Kong and sought to block a British inquiry into developments in the former U.K. colony on the basis that it constituted “interference in China’s internal affairs.”4 This was not the first time foreign concern over Hong Kong’s democratization had drawn a harsh Chinese response. In an op- ed published in Hong Kong’s Chinese- and English-language pa- pers of record on September 14, 2013,5 Hugo Swire, Minister of 1. See, e.g., Chris Buckley & Michael Forsythe, China Restricts Voting Re- forms for Hong Kong, N.Y. TIMES (Aug. 31, 2014), http://nyti.ms/1ndHqh9. See also Alex Lo, The Rotten Boroughs That Are the Main Stumbling Block to Re- form, S. CHINA MORNING POST (H.K.), Jan. 31, 2015, http://www.scmp.com/com- ment/insight-opinion/article/1696759/rotten-buroughs-are-main-stumbling- block-reform. 2. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang- gang Tebie Xingzhengqu Xingzheng Zhangguan Puxuan Wenti He 2016 Nian Lifa Hui Chansheng Banfa De Jueding (全國人民代表大會常務委員會關於香港 特別行政區行政長官普選問題和 2016 年立法會產生辦法的決定) [Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of Chief Executive of the Hong Kong Special Administrative Re- gion by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region In the Year 2016] (adopted by the Standing Comm. Nat’l People’s Cong., Aug. 31, 2014) [herein- after 2014 Decision]. 3. See Buckley & Forsythe, supra note 1. 4. See 陳佐洱：不與「漢奸港獨」做朋友 [Chen Zuoer: Will Not Befriend “Traitors, Separatists”], MINGPAO (H.K.), Aug. 30, 2014 and Laura Kuenssberg, China Accuses MPs of Hong Kong ‘Interference’, BBC NEWS (Sept. 1, 2014), http://www.bbc.com/news/uk-politics-29016776. 5. Hugo Swire, 選舉、民主和香港的未來 [Voting, Democracy and the Fu- ture of Hong Kong],MINGPAO (H.K.), Sept. 14, 2013; Hugo Swire, People Must Have a Genuine Choice in the 2017 Chief Executive Election, S. CHINA MORNING POST (H.K.), Sept. 14, 2013, http://www.scmp.com/comment/insight-opinion/ar- ticle/1309205/people-must-have-genuine-choice-2017-chief-executive. See also Hugo Swire, Voting, Democracy and the Future of Hong Kong, GOV.Uk (Sept. 14, 2013), https://www.gov.uk/government/speeches/voting-democracy-and- the-future-of-hong-kong. 2015] HONG KONG AND DEMOCRACY 469 State for the Foreign and CoMMonwealth Office (“FCO”) of the United Kingdom, stated his support for the introduction of uni- versal suffrage in Hong Kong. Swire reiterated the United King- dom’s commitment to Hong Kong under the Sino-British Joint Declaration of 1984 (“Joint Declaration”), adding, “the U.K. stands ready to support [Hong Kong’s transition to universal suffrage] in any way [it] can.”6 Official responses ranged from the unfriendly
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