Hong Kong's electoral standoff: the bigger picture
Tony Carty says a chief executive nomination process that was not sympathetic to China would be a strange disregard of national interest and security in a world of heightened tensions
Article 25 of the International Covenant on Civil and Political Rights provides that every citizen shall have the right to stand for election and to vote without unreasonable restrictions. In the case of Hong Kong, there is an original UK reservation to the applicability of the article to the territory, continued by Beijing.
The arguments around the legal effectiveness of this reservation are well known and complex. What has still to be recalled is that international law, of which the covenant is a part, remains the law among sovereign states. It regulates the relations of states on a consensual basis.
Generally, this law does not try to regulate the birth or constitution of states or their internal affairs, simply because this is beyond the physical capacity and also outside the interest of most states. At the same time, there is no international judicial authority or legal sanctioning framework, whereby states impose on one another legal duties with respect to one another's internal affairs.
Also, as a matter of international relations theory, the world community does not constitute the shape of individual national communities; they constitute themselves and then come to face one another at the international - that is, inter-state - level. Disputes and conflicts shape individual countries' relations with one another, but there is no overwhelming global power that shapes all the world's states systematically according to any particular model.
This is the true context of the development of international legal relations between Britain and China with respect to Hong Kong. The origin of Article 45 of the Basic Law is in the Joint Declaration of 1984, which provides that the chief executive will be appointed by the central government on the basis of the results of local elections or consultations.
The now published archival records of the British cabinet and prime minister's papers from 1984 show clearly that the British recognised how, obviously, a directly elected chief executive would greatly favour the autonomy of Hong Kong, but that so much could not be obtained. Given this fact, the record also shows that the British thought the best course was to present the agreement reached with China to the Hong Kong people on a non-negotiable basis, the alternative being that China would shape the constitution of Hong Kong unilaterally.
The Chinese perspective was that Hong Kong was torn from the Chinese motherland in two notorious "opium wars". This history is fundamental to the question of whether there is in fact a Hong Kong people, as distinct from simply a population in Hong Kong which is part of the people of China in one country.
The political and historical compromise which the British and the Chinese made in the Joint Declaration is essential to the issue of the patriotism of the people of Hong Kong. The compromise was a reflection of the balance of power between Britain and China, a balance which has not changed since 1984.
The largely pan-democratic criticism of the National People's Congress Standing Committee decision on the procedure for the election of the chief executive, endorsed by a recent UK House of Commons Foreign Affairs Committee report, is, nonetheless, accompanied in the report by a careful exposition of the ambiguity and equivocation of the British government itself towards the issue in the face of Hong Kong protests. This is nothing more than fair evidence that there is little Britain can do about the procedure for the election of the chief executive, if it is not to try to upset the geopolitical balance in Asia.
Given the historical situation of Hong Kong in relation to China, the acceptance of any nomination procedure which did not ensure a majority of nominators sympathetic to China would be a strange disregard of national interest and security in a very volatile time of world power tensions. At a time when the US is actively encouraging China's opponents in the South and East China seas, Hong Kong could move into the US (and UK) sphere of political and military interest. In spite of repeated efforts of pan-democratic lawyers and politicians to elicit American and British support in their struggle against the Chinese government, it appears that these states do not consider the moment strategically opportune to afford significant backing. Hong Kong is not Ukraine in their eyes.
As for the UK reservation to Article 25(b), and its continuance by China, one might say that the treaty powers, Britain and China, intended to accept that the principle of democratic decolonisation leading to independence (Article 73 of the UN Charter) should not apply to Hong Kong. In the usual colonial context, democracy was the path to independence, but Hong Kong was different. It was, in the Chinese view, a wrongfully seized territory which should be returned to the motherland.
Without considering this historical context of the concrete relations between these two treaty powers, the Hong Kong Bar Association takes the position that the 1976 UK reservation means only that it does not require the establishment of elected executive and legislative councils and cannot possibly cover the electoral method of the chief executive, which is a separate office. However, as an argument about the effect of a limited reservation, this is, in the view of the "Scoping Report" by the British Institute of International and Comparative Law, open to the objection that Article 25 clearly does not require direct elections of a chief executive.
Of course, if there was a world state, and a world constitutional court had to decide the issues of interpretation - backed up by a Security Council in possession of effective military or economic sanctions - then it is certainly possible that such a court would prefer the Bar Association's view to that of the Scoping Report. The difficulty is that the starting point for Hong Kong remains the geopolitical balance which went into the drafting of the Joint Declaration and the Basic Law which followed. What would be the likely course of events if this balance were to appear to be seriously under challenge?
Professor Tony Carty is Sir Y K Pao Chair in Public Law at the Faculty of Law, University of Hong Kong. An expanded version of this article is available at: http://researchblog.law.hku.hk/2015/04/tony-carty-on-international-standards.html