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

81 Pages Posted: 15 Jun 2014 Last revised: 27 Aug 2015

See all articles by Alvin Cheung

Alvin Cheung

New York University (NYU) - US-Asia Law Institute; New York University (NYU), School of Law, JSD Program; New York University School of Law

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Date Written: April 22, 2015

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.

Keywords: Hong Kong, Joint Declaration, Basic Law, International law, China law

JEL Classification: K33

Suggested Citation

Cheung, Alvin, Road to Nowhere: Hong Kong's Democratization and China's Obligations Under Public International Law (April 22, 2015). 40 Brooklyn Journal of International Law 465 (2015). Available at SSRN: https://ssrn.com/abstract=2428220

Alvin Cheung (Contact Author)

New York University (NYU) - US-Asia Law Institute ( email )

139 MacDougal Street
New York, NY 10012
United States

New York University (NYU), School of Law, JSD Program ( email )

22 Washington Square North
New York, NY 10011
United States

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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