BY KELLY SHAMI – On August 31, 2014, China passed a set of voting guidelines to be applied to Hong Kong’s upcoming 2017 elections for Chief Executive.[1] One of the most controversial restrictions passed in the bill is the requirement that each candidate be approved by a committee in Beijing before being eligible to run for election.[2] This voting restriction has sparked nonviolent protests and strikes throughout Hong Kong.[3] The protesters are demanding democracy in their upcoming elections, something they fear will be suppressed if their candidates for Chief Executive are being screened according to their loyalty to China by the Standing Committee of the National People’s Congress.[4]
Under the 1984 Sino-British Joint Declaration, the UK agreed to return Hong Kong to Chinese sovereignty in 1997.[5] With this declaration came China’s promise to give Hong Kong “a ‘high degree of autonomy,’ and the ability for Hong Kong government to decide all policies on its own except foreign affairs and defense.”[6] Nevertheless, on June 10, 2014, China’s Cabinet, the Information Office of the State Council, issued The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region (hereinafter “the white paper”).[7]
Among other things, the white paper declared that despite Hong Kong’s ability to “exercise a high degree of autonomy in accordance with the law,” China still exercises overall jurisdiction over the Hong Kong Special Administrative Region (hereinafter “HKSAR”).[8] The white paper emphasized that the “One Country” portion of “One Country, Two Systems” took priority.[9] As a result, the white paper gives the Central People’s Government jurisdiction even over the powers delegated to the HKSAR government, despite its obligation under the 1984 Sino-British Joint Declaration to afford Hong Kong the ability to exercise a high degree of autonomy.[10]
In addition to its obligations under the 1984 Sino-British Joint Declaration, China also became a signatory to the International Covenant on Civil and Political Rights (hereinafter “ICCPR”) in 1998.[11] By consenting to be bound by this Human Rights treaty, in addition to its accession to the Vienna Convention on the Law of Treaties in 1997,[12] China has agreed to strictly respect and enforce its citizens’ fundamental civil and political human rights, including those of its citizens in Hong Kong. Furthermore, through its 2004 amendment to the constitution to include “respect and protect human rights” and its promise of a national human rights action plan in 2008,[13] China has repeatedly expressed its intent to promote fundamental human rights within its territories.[14]
Despite China’s repeated commitments to protecting human rights, recent events suggest that its commitment to these rights is simply an empty promise.[15] On August 31, 2014, following Occupy Central With Love and Peace’s unofficial vote on whether the public should be able to nominate its own Chief Executive candidates and a pro-democracy march,[16] China’s legislature passed voting guidelines for the upcoming 2017 elections of Hong Kong’s new Chief Executive.[17] These voting guidelines caused widespread peaceful demonstrations and protests throughout Hong Kong.[18] On September 28, 2014, the police attempted to break up the demonstrations by launching tear gas and pepper spray into the crowds of protestors.[19]
China’s actions regarding its imposition of voting guidelines and the police force’s reactions to demonstrators have numerous human rights implications. Article 18 of the Vienna Convention on the Law of Treaties requires China “to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty…or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty.”[20] Therefore, despite having signed but not ratified the ICCPR, China is still required to act in a manner consistent with the ICCPR obligations because it signed and expressed on numerous occasions its intent to be bound by that treaty.
Accordingly, Article 25 of the ICCPR states that “[e]very citizen shall have the right and the opportunity…(a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”[21] The rights of citizens to take part in the conduct of public affairs through freely chosen representatives and the need for elections to guarantee to reflect the free expression of the will of the electors, when applied to the voting guidelines imposed on Hong Kong, put China in direct violation of its ICCPR obligations.
By implementing a committee to screen potential Chief Executive candidates’ eligibility based on their love of China, the Central People’s Government violates the rights of the people of Hong Kong to freely choose their representatives so that they may be able to exert their right to take part in the conduct of public affairs. Similarly, the voting guidelines serve to go against China’s obligation to guarantee that elections mirror the free expression of the will of the electors. Instead, the voting guidelines allow elite, anti-democracy Beijing committee members to skew the elections by disqualifying any candidates who do not “love the country in accordance with the ‘One Country, Two Systems’ principle.”[22] By implementing these guidelines under the veil of “one person, one vote” in HKSAR through “gradual and orderly progress in developing a democratic system that suits the actual system in Hong Kong,” the Chinese government is attempting to circumvent its ICCPR obligations by disguising the guidelines as attempting to ultimately achieve universal suffrage.[23]
In addition to the violation of Article 25 rights under the ICCPR, the police’s reaction to demonstrators on September 28 by using tear gas, batons, and pepper spray constitutes yet another violation of China’s ICCPR obligations. Article 21 of the ICCPR guarantees that “[t]he right of peaceful assembly shall be recognized.”[24] Instead of respecting the protestor’s rights to peaceful assembly, the police used excessive force in a failed attempt at dispersing the crowds of demonstrators.[25] On September 30, 2014, Human Rights Watch issued a statement regarding its concern with the unprovoked and excessive force used on the crowd.[26]
“While some protester action may warrant the use of force by police, international human rights standards limit the use of force to situations in which it is strictly necessary. The United Nations Basic Principles on the Use of Force and Firearms provide that…[w]hen using force, law enforcement officials should exercise restraint and act in proportion to the seriousness of the offense.”[27]
Additionally, a number of foreign governments have issued statements regarding their concern with the measures taken against the demonstrators.[28] In response to the growing international concern about the conduct of Chinese police against demonstrators, the Chinese Ministry of Foreign Affairs stated that “‘Hong Kong is China’s Hong Kong,’ and warned against interference” by related countries.[29]
Despite having committed itself to the promotion and respect of fundamental human rights through consenting to be bound by the ICCPR and in its own constitution, China’s recent actions regarding the implementation of voting guidelines for the 2017 election of Hong Kong’s new Chief Executive has caused the people of Hong Kong to be deprived of an array of their fundamental human rights. The Chinese government has responded to pro-democracy demonstrations with unnecessary violence and has issued hostile statements, cautioning the international community not to get involved. Instead, China should seek to rectify the situation by coming into conformity with its treaty obligations. Additionally, it should reconsider its voting guidelines to give the citizens of Hong Kong a meaningful opportunity to have a democratic election.
[1] Chris Buckley and Michael Forsythe, China Restricts Voting Reforms for Hong Kong, The New York Times (Aug. 31, 2014), http://www.nytimes.com/2014/09/01/world/asia/hong-kong-elections.html.
[2] Id.
[3] Id.
[4] Id.
[5] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, Dec. 19, 1984, 1985 Gr. Brit. T.S. No. 26 (hereinafter “1984 Sino-British Joint Declaration”).
[6] Sophie Richardson, Britain Betrays Hong Kong…Again, Human Rights Watch (Sept. 23, 2014),http://www.hrw.org/news/2014/09/23/britain-betrays-hong-kong-again.
[7] The Information Office of the State Council, The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region, Xinhuanet (June 10, 2014), http://news.xinhuanet.com/english/china/2014-06/10/c_133396891.htm.
[8] Id.
[9] Michael Forsythe, Protests in Hong Kong Have Roots in China’s ‘Two Systems’, The New York Times (Sept. 29, 2014), http://www.nytimes.com/2014/09/30/world/asia/the-hong-kong-protests-what-you-should-know.html?_r=0.
[10] 1984 Sino-British Joint Declaration, supra note 5.
[11] United Nations Treaty Collection, https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en (last visited Oct. 11, 2014).
[12] United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mtdsg3&lang=en (last visited Oct. 11, 2014).
[13]Charter 08, http://www.charter08.eu/2.html (last visited Oct. 11, 2014).
[14] See China: Ratify Key International Human Rights Treaty, Human Rights Watch (Oct. 8, 2013),http://www.hrw.org/news/2013/10/08/china-ratify-key-international-human-rights-treaty (“China signed the International Covenant of Civil and Political Rights (ICCPR), on October 5, 1998, but has yet to ratify it, despite repeated promises to do so” (emphasis added)).
[15] See id (“China’s current legislation and practices violate or deny many of the rights set out in the ICCPR, from the right to vote in genuine periodic elections to the right not to be arbitrarily detained. The government also routinely harasses, detains, imprisons, and tortures human rights activists and government critics.”).
[16] Chris Buckely, Michael Forsythe, and Alex Wong, In Hong Kong, an Unofficial Election Draws Beijing’s Ire, The New York Times (June 20, 2014), http://www.nytimes.com/2014/06/21/world/asia/in-hong-kong-an-unofficial-election-draws-beijings-ire.html.
[17] Buckley and Forsythe, supra note 1.
[18] Keith Bradsher, Chris Buckley, and Michael Forsythe, Huge Crowds Turn Out for Pro-Democracy March in Hong Kong, Defying Beijing, The New York Times (July 1, 2014), http://www.nytimes.com/2014/07/02/world/asia/hong-kong-china-democracy-march.html.
[19] Chris Buckley and Alex Wong, Crackdown on Protests by Hong Kong Police Draws More to the Streets, The New York Times (Sept. 28, 2014), http://www.nytimes.com/2014/09/29/world/asia/clashes-in-hong-kong.html.
[20] Vienna Convention on the Law of Treaties art. 18, Jan. 27, 1980, 1155 U.N.T.S. 331, at 336.
[21] International Covenant on Civil and Political Rights art. 25, March 23, 1976, 999 U.N.T.S. 171, at 179 (emphasis added).
[22] Standing Committee of the National People’s Congress, Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the 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 Administrative Region in the Year 2016, Xinhuanet (Aug. 31, 2014), http://news.xinhuanet.com/english/china/2014-08/31/c_133609238.htm.
[23] Id.
[24] International Convention on Civil and Political Rights, supra note 22, at 178.
[25] Buckley and Wong, supra note 19.
[26] Hong Kong: Free Peaceful Protesters; Avoid Excessive Force, Human Rights Watch (Sept. 30, 2014),http://www.hrw.org/news/2014/09/30/hong-kong-free-peaceful-protesters-avoid-excessive-force.
[27] Id.
[28] See Hong Kong protests: UK ‘concerned’ about situation, BBC News (Sept. 29, 2014), http://www.bbc.com/news/uk-29411128 (“‘It is Britain’s longstanding position that Hong Kong’s prosperity and security are underpinned by its fundamental rights and freedoms, including the right to demonstrate.’”); see also Hong Kong Protesters Defy Officials’ Call to Disperse, The New York Times (Sept. 30, 2014), http://www.nytimes.com/2014/09/30/world/asia/hong-kong-protests.html?_r=0 (“The United States government…urges the city’s authorities ‘to exercise restraint and for protesters to express their views peacefully…The United States supports universal suffrage in Hong Kong in accordance with the Basic Law,’ Mr. Earnest said. ‘And we support the aspirations of the Hong Kong people.’”).
[29] Hong Kong Protesters Defy Officials’ Call to Disperse, The New York Times (Sept. 30, 2014), http://www.nytimes.com/2014/09/30/world/asia/hong-kong-protests.html?_r=0.
