Road to Nowhere: Hong Kong's Democratisation and China's Obligations Under Public International Law

Abstract

Does public international law have anything to say about how Hong Kong's Chief Executive should be chosen? The Hong Kong and Beijing Governments have framed the debate on electoral reforms for 2017 purely in terms of domestic law. They reject the relevance of the International Covenant on Civil and Political Rights (ICCPR) and have rebuffed any role for the United Kingdom under the Sino-British Joint Declaration of 1984 (Joint Declaration). In so doing, they seek to justify Beijing's insistence on powers of veto over nomination and appointment of the Chief Executive. However, an analysis purely in terms of domestic law is incomplete. Despite the insistence of the Hong Kong and Beijing Governments, international law has a role to play in the debate over Chief Executive electoral reform. Beijing’s commitments with respect to Hong Kong in the Joint Declaration, including the continued application of parts of the ICCPR to Hong Kong, preclude it from filtering Chief Executive candidates by political views. Emergent norms of customary international law are not only relevant to the interpretation of the Joint Declaration and ICCPR, but may also provide a freestanding basis to challenge the pre-ordination of candidates for Chief Executive. The state of the current debate, and China's long-standing efforts to frustrate democratic development in Hong Kong, show that it has not complied with its international law obligations. However, in the absence of individual rights of petition to the Human Rights Committee and in the absence of International Court of Justice compulsory jurisdiction, the prospects for enforcement of these obligations are bleak.