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The Hong Kong Election Crisis and International Law

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The Hong Kong Election Crisis and International Law SPOTLIGHT CLE: THE HONG KONG ELECTION CRISIS AND INTERNATIONAL LAW CLE Credit: 1.0 Friday, June 19, 2015 11:20 a.m. - 12:20 p.m. Bluegrass Ballroom Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Reconceptualizing the Law of Treaties and the Handover Narrative in the Crucible of Hong Kong's Election Crisis .......................................................................... 1 Introduction .......................................................................................................... 1 Background to the 2014 Election Crisis ............................................................... 4 The Joint Declaration, the Basic Law and the 2014 Election Crisis ............................................................................................. 7 "Universal Suffrage," the Law of Treaties and the Sino-British Joint Declaration ............................................................................. 15 Reconceptualizing the Law of Treaties in Light of the Sino-British Joint Declaration ............................................................................. 44 Conclusion ......................................................................................................... 49 THE PRESENTER Professor Gregory S. Gordon The Chinese University of Hong Kong Faculty of Law 6/F Lee Shau Kee Building Sha Tin, NT, Hong Kong SAR [email protected] PROFESSOR GREGORY S. GORDON is Associate Professor and Assistant Dean for the Research Postgraduates Program at the Chinese University of Hong Kong (CUHK) Faculty of Law. Prior to joining CUHK, Professor Gordon was a tenured faculty member at the University of North Dakota (UND) School of Law and Director of the UND Center for Human Rights and Genocide Studies. He earned his Bachelor of Arts degree (summa cum laude) and Juris Doctor at the University of California at Berkeley. He then served as law clerk to U. S. District Court Judge Martin Pence. After a stint as a litigator in San Francisco, he worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark "media" cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. For this work, Professor Gordon received a commendation from Attorney General Janet Reno for "Service to the United States and International Justice." After his experience at the ICTR, he became a white-collar criminal prosecutor with the U.S. Department of Justice, Tax Division. Following a detail as a Special Assistant U.S. Attorney for the District of Columbia, he was appointed as the Tax Division's Liaison to the Organized Crime Drug Enforcement Task Forces (Pacific Region) for which he helped prosecute large narcotics trafficking rings. Also during this time, he was detailed to Sierra Leone to conduct a post-civil war justice assessment for the Department of Justice's Office of Overseas Prosecutorial Development, Assistance, and Training. In 2003, he joined the Department of Justice Criminal Division's Office of Special Investigations, where he helped investigate and prosecute Nazi war criminals and modern human rights violators. Professor Gordon has been featured on C-SPAN, NPR, the BBC and Radio France Internationale as an expert on war crimes prosecution and has lectured on that subject at the United Nations, the International Criminal Court, the United States Army Judge Advocate General School, the Harry S. Truman Presidential Museum and Library, and the United States Holocaust Memorial Museum. He has trained high-level federal prosecutors in Addis Ababa at the request of the Ethiopian government, as well as prepared prosecutors for the Khmer Rouge leadership trial at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh, and trained lawyers and judges at the War Crimes Chamber for the Court of Bosnia and Herzegovina. His scholarship on international criminal law has been published in leading international academic i publications, such as the Columbia Journal of Transnational Law and the Virginia Journal of International Law as well as top American flagship law reviews such as the Ohio State Law Journal and the Oregon Law Review. He is one of the world's foremost authorities on incitement to genocide and his book Atrocity Speech Law: Foundation to Fruition, proposing a new paradigm for international hate speech law, will be published by Oxford University Press in 2015. Professor Gordon has presented his work at institutions such as Harvard Law School, Columbia Law School, Yale University, Georgetown University Law Center, Melbourne Law School, and Katholieke Universiteit Leuven. He was the inaugural winner of the North Dakota Spirit Law School Faculty Achievement Award in 2009 and was invited to deliver the prestigious UND Faculty Lecture in 2011. In 2010, Professor Gordon co-wrote the U.S. Supreme Court amicus brief of Holocaust and Darfur Genocide survivors in the case of Yousuf v. Samantar. He also represented the International League for Human Rights at the International Criminal Court Conference in Kampala, Uganda. In 2012, he was the BBC World News live on- air television analyst for the announcement of the historic Charles Taylor trial verdict. He is an adviser on hate speech issues for the Sentinel Project on Genocide Prevention's Advisory Council and serves on the Council of Advisors for the Global Institute for the Prevention of Aggression. ii RECONCEPTUALIZING THE LAW OF TREATIES AND THE HANDOVER NARRATIVE IN THE CRUCIBLE OF HONG KONG'S ELECTION CRISIS Gregory S. Gordon* I. INTRODUCTION From September through December 2014, protests erupted in Hong Kong over the meaning of "universal suffrage" in connection with Hong Kong's upcoming 2017 election of a Chief Executive.1 In 2007, the People's Republic of China, the suzerain that governs over the "Hong Kong Special Administrative Region" (“SAR”) promised Hong Kong voters "direct elections" for the 2017 Chief Executive contest in accord with Articles 45 and 68 of Hong Kong's "Basic Law," the SAR's mini-constitution.2 In August 2014, however, the Standing Committee of China's National People's Congress decided that voters will be restricted to choosing the Chief Executive from a list of two or three candidates selected by a Beijing-friendly nominating committee.3 Hong Kong democracy activists, concerned the nominating committee would screen out candidates not strictly towing Beijing's party line, interpret universal suffrage as allowing all eligible Hong Kong voters to pick the candidate of their choosing in accordance with Article 26 of the Basic Law.4 Throughout the controversy, in supporting their respective positions, both sides have focused almost exclusively on the provisions of the Basic Law, which provides a fifty-year guarantee of "one country, two systems," i.e., a high degree of SAR autonomy, including its own * Associate Professor of Law and PhD Programme Director, Chinese University of Hong Kong Faculty of Law. I would like to thank my research assistant, Charles Lo, for his excellent work on this article. I would also like to acknowledge the invaluable support and encouragement of the Kentucky Bar Association, and its Program & Publications Coordinator, Dianna Moore, without whom this article would not have been possible. 1 "Police Clear Final Hong Kong Protest Site at Causeway Bay," BBC News (Dec. 15, 2014), http://www.bbc.com/news/world-asia-30474687. 2 See Edward Cody, "China Denies Hong Kong Direct Vote on Leader in 2012," Washington Post (Dec. 29, 2007), available at http://www.washingtonpost.com/wp-dyn/content/article/2007/ 12/28/AR2007122803330.html; "Fact Check: Was Hong Kong Ever Promised Democracy?," Australian Broadcasting Corporation, http://www.abc.net.au/news/2014-12-16/ was-hong-kong-ever-promised-democracy-fact-check/5809964 (last updated Dec. 16, 2014) [hereinafter "Ever Promised Democracy"]. 3 Andrew Stevens, "Beijing Says No to Open Elections in Hong Kong," CNN (Sept. 5, 2014), http://edition.cnn.com/2014/08/31/world/asia/hong-kong-elections/. 4 Id.; see also The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Apr. 4, 1990 (P.R.C.), art. 26, translated in 29 I.L.M. 1520, available at http://www.legislation.gov.hk/eng/home.htm?SearchTerm=article%2026 [hereinafter
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