Monday, April 13, 2015

Tony Carty on International Standards in Hong Kong Political Reform

Nominating Committee and International Standard under the 
Debate of Political Reform in Hong Kong
Usually in Hong Kong at present this topic is taken to be directed to the 31 August 2014 Standing Committee of the National People's Congress (SCNPC) Decision concerning the 2017 Chief Executive Elections. The decision prescribes that only two to three candidates may stand who have been nominated by the Nominating Committee, constituted much as for the 2012 election, with the additional prescription that each candidate must obtain more than half the votes of the Nominating Committee. The general criticism is made that, with weighted voting through the Functional Constituencies, a “pro-Beijing majority” will screen out “Pan-Democratic” candidates. This situation is then argued to contravene an international standard the substance of which is enshrined in article 25 of the International Covenant of Civil and Political Rights (ICCPR). This provides, inter alia, that every citizen shall have the right to stand for election and to vote in elections without unreasonable restrictions. 
     It is very difficult to contribute to this discussion as a matter of legal, textual analysis of constitutional documents in any manner which can add usefully to the already decades long existing debate. Given the politically charged quality of the debate, where textual arguments are supposed to serve wider political ends, it is well neigh impossible to contribute conclusively to the satisfaction of both sides of the political divide in Hong Kong. The Pan Democrats (referring to a political block in the Hong Kong Legislative Council), the Hong Kong Bar Association and many in the Hong Kong Law Faculty argue that, whatever the reservations which the United Kingdom and the PRC have made to side step article 25 of the Covenant, it still represents an international standard which has to govern the political reform debate. The HK Government responds with rigorous positive law arguments that the ICCPR article 25 does not apply, that the true standards applicable to Hong Kong are in the Basic Law and in particular article 45. The ICCPR Human Rights Committee argues against the HK Government both as a matter of law and policy.
      This paper accepts that a matter of positive international law, there is no doubt that the Hong Kong Government’s position is correct. However, it wishes to go beyond purely textual analysis of binding legal instruments to make some general arguments about the nature of international law, which appear to be missing from the debate about article 25 ICCPR. International law, of which the ICCPR is a part, remains the law among sovereign states. It regulates the relations of states upon 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 states. At the same time, there is no international judicial authority or legal sanctioning framework, whereby states impose upon one another legal duties with respect to the internal affairs of one another. The ICCPR Human Rights Committee has the power to hear individual petitions where individual states permit it and the Committee may issues expert opinions. However, this does not alter the fundamental structure of international society. These expert opinions are not legally binding and states may pay whatever attention to them as suits them.

The Geopolitics of International Law
As a matter also of international relations theory, the world community does not constitute the shape of individual national communities. These constitute themselves and then they come to face one another at the international, i.e. inter-state level. Individual disputes and conflictual histories shape individual countries in their relations with one another, but there is no overwhelming global authority that shapes and constitutes all of the states of the world systematically according to any particular model. This is not to say that the United Nations Security Council may not from time to time authorize some states to attempt as much. Kosovo and Afghanistan are unpromising examples of international administration. The Libyan episode of Security Council authorized intervention has been recognized as a disaster and the failure of global intervention in Syria shows the nemesis of idealist doctrines of the rights of some states to protect the citizens of others. Now the United States, Britain, Australia and Canada, from whom the Pan-Democrats hope so much for diplomatic support, are locked in a fierce war with the Islamic State, effectively defending autocratic military oligarchies in the Saudi Peninsula and the Persian Gulf against populist, however distasteful, forces.
     This is the true context of the development of international law 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 (Paragraph 3.4) that the Chief Executive will be appointed by the Central People’s Government on the basis of the results of elections or consultations to be held locally. These exact words form the first paragraph of article 45 of the Basic Law. The now published Archival records of the British Cabinet and Prime Minister’s Papers of 1984 show clearly that the British recognized how, obviously, a directly elected Chief Executive would greatly favor the autonomy of Hong Kong, but that so much could not be obtained. Given this fact the National Archival record 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. [i]
     The Chinese perspective, never formally admitted on the British side, was that Hong Kong was torn from the Chinese motherland in two notorious “Opium Wars”, both of which were recognised at the time by British international lawyers, politicians and public opinion generally as unjust.[ii] Of course this disagreement is recognised in the Joint Declaration itself, where the British refer to restoring a sovereignty which the Chinese declare themselves to be resuming, in articles 1 and 2 of the Joint Declaration.
     This history is fundamental to the question 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, China. This political, historical compromise which the British and the Chinese have made 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-Democrat criticism of China reproduced uncritically in the latest UK House of Commons Foreign Affairs Committee Report[iii] is accompanied by a careful exposition of the ambiguity and equivocation of the British Government towards China in the face of Hong Kong protests. This is nothing more than fair evidence that there is little Britain can do, if it is not to try to upset the geo-political balance of South East Asia. In addition Britain is too busy in the Middle East and the Persian Gulf. 
     It is obvious that an untrammeled, Nomination Committee free election of a Chief Executive would put the political entity of Hong Kong in a position, in the terms of the International Court of Justice Advisory Opinion on the Declaration of Independence of Kosovo, to declare independence of China without contravening international law.[iv] 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 USA is actively encouraging China’s opponents in the South and East China Sea, Hong Kong would 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 (and only such support) in their struggle against the Chinese Government, it appears that these states do not consider the moment strategically opportune to afford significant support. Hong Kong is not the Ukraine in their eyes.

The Politics, also sometimes Geo-Politics of Human Rights Law
It is more and more recognised in the Anglo-Saxon legal and political world that human rights language serves firstly a political purpose. It is ambiguous language which may be used by either side in a political struggle so as to attempt to compel a favorable outcome by insisting that the language can have only one meaning. This development is known as the juridicization of politics. James Allan, a Canadian academic lawyer based in Australia, campaigns against the introduction into Australia of a Canadian style Bill of Rights. To do so he argues specifically against so-called international standards evoked from non-binding international norms, which represent nothing but the personal preferences of unelected, supposed experts in a discipline such as human rights law, which is riddled with the indeterminacy of its basic concepts.[v] The effect of appeal to so-called international standards, mainly in the matter of US case law, where none of these standards have been ratified by the US, has meant that controversial issues of family, child and gender law have been decided not merely in the absence of any compelling interpretation of the international norm, but also in flagrant violation of the national or local will expressed in popular referenda. 
     Allan, and with him the political scientist, Francis Fukuyama, argue that it is a generalized, i.e. global phenomenon for blocked political societies, which is to say most democratic societies, but particularly the United States and Australia, to resort to the fetish of judicial authority to resolve political disputes. The judges’ appeal to international, non-binding standards, is not to introduce or reinforce democracy but to offer an escape from the consequences of the failure of an effective or healthy democratic discourse capable of energizing a compromise of social interests and groupings.[vi]
      This is the context in which to view the extraordinary dexterity of the arguments pro- and con the meaning of article 25 of the ICCPR in the Hong Kong context. All of the arguments used are delightful from the perspective of a legal aesthetic of argument. None of them can offer an outcome to the political impasse. As for the UK reservation to article 25(b), and its continuance by China, one might say that the Treaty Powers intended to accept that the principle of democratic decolonization leading to independence (article 73 of the United Nations Charter) should not apply to Hong Kong. In the usual colonial context democracy was the path to independence. This should not apply to Hong Kong, as it was a wrongfully seized territory which should be returned to the motherland. 
     However, it is always possible for a lawyer to quibble. That is why Confucius thought Law no pathway to Virtue. The first step is to say that while there may be no duty to have elected legislative and executive councils, once the process of having elected councils has begun, then the UK reservation to article 25 is redundant. The proviso becomes redundant. This is well known to be the view of the UN Human Rights Committee. You need do nothing to introduce reform but if you undertake to introduce it gradually then international law will seize the process out of your control. In the so-called Scoping Report, the British Institute of International Law points out how the reservation merely says that article 25(b) only applies in so far as that provision may require the establishment of a Legislative or Executive Council, but that if the UK or China accept to have such an elected council the reservation is redundant. If the reservation had been intended to exclude all obligations under article 25(b) it would have simply said that the Government of the UK reserves the right not to apply article 25(b).[vii]
     The snag, for the Pan-democrats, is that article 25 does not require the direct election of the Chief Executive. This may well be why the reservation makes no mention of Chief Executive Elections. The Scoping Report points out that it cannot be held that article 25 requires the Chief Executive to be directly elected, and so the reservation would not have needed to cover this eventuality.[viii]
     However, the UN Human Rights Committee does not agree. It has held that article 25 of the ICCPR extends to the election of the Russian President. Yet, once again, a discordant note is struck by the UK Supreme Court in Moohan and another v The Lord Advocate a case concerning whether prisoners had a right to vote in the Scottish referendum. Lord Hodge, speaking for the majority of the judges, noted how the Human Rights Committee considered that article 25 covered a vote on the election of the Russian President as the wording of article 25 is to cover citizens participating directly in public affairs by holding executive office. However, Lord Hodge remarked how the Strasburg European Court of Human Rights reached a different conclusion on the same issue when interpreting A3P1 of the European Convention on Human Rights, whose wording is in fact narrower and specifically refers to the legislature.[ix] Nonetheless, the discrepancy between Strasburg and New York/Geneva shows an uncertainty in international standards.
     A further point of Lord Hodge leads into the Hong Kong Government’s thinking on article 25. The issue whether the Scottish Parliament lacks the competence to legislate in breach of article 25 of the ICCPR cannot arise because of the fundamental separation of powers in the constitution. The Executive makes treaties but they bind domestically only if entered into law by legislation.[x] Its argument in the submission to the Human Rights Committee in 2011 is simply that the constitutional law jurisprudence of Hong Kong provides that the ICCPR does not have direct effect in Hong Kong, but only effect by incorporation. In a case concerning the issue of compatibility of corporate voting, it was decided that that “so far as domestic law is concerned, article 25(b) of the Covenant assumes constitutional significance only by virtue of article 39 of the Basic Law, which itself provides for the continued application of the ICCPR to Hong Kong after 1997 as it applied to Hong Kong at the time the Basic Law was enacted.”[xi]
     None of this makes pro-Pan-democratic lawyers shy of insisting that the ICCPR article 25, without any reservation, applies in Hong Kong. The latest Hong Kong Bar Association written submission to the Human Rights Committee is as follows:
The HKBA takes the position that the 1976 reservation, interpreted in its context and purpose, means that it does not require the establishment of an elected Executive Council and Legislative Council. Given that a state reserves no more than what is contained in the text of the reservation itself, the 1976 reservation cannot possibly cover the electoral method of the Chief Executive of the HKSAR, which is an office separate from the Executive Council.
The HKBA therefore takes the position that the provisions of the ICCPR as applied to Hong Kong include article 25(b) in full in so far as the electoral method for the Chief Executive is concerned.[xii]
     As an argument about the effect of a limited reservation this is, in the view of the Scoping Report open to the objection that article 25 clearly does not require direct elections of a Chief Executive. If one says that, once the decision to have any election has been taken article 25 would require that its provisions should apply, a possible objection is that such an argument contradicts the wording of article 45 of the Basic Law. The second paragraph assumes that the Chinese Government will retain control of the process of gradual introduction of universal suffrage. 
     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 the possession of effective military or economic sanctions – then it is certainly possible that such a Court would prefer the view of the HKBA to the Scoping Report and the UN Human Rights Committee to the Strasburg Human Rights Court. Whether its judgment was convincing would not matter. 
     The difficulty is that the starting point for Hong Kong remains the geo-political history which went into the drafting of the Joint Declaration and the Basic Law which followed. Hong Kong Pan-democrats have tried to change this geo-political balance with frequent trips to London and Washington, so far without noticeable success. Their high point is the already mentioned Report of the House of Commons Foreign Affairs Committee which faithfully reproduces their concerns and opinions.

A Return to Classical Legal Prudence in the Application of International Standards 
The fixed hostility in Government circles to the idea of an international standard may attach to a particular “rationalist” concept of law. It assumes a universal will of humanity, expressed for all time in an eternal code such as article 25 of the ICCPR. The words “to vote and to be elected at genuine periodic elections” and “without unreasonable restrictions” in a “universal and equal suffrage” are very much written in stone by an eternal legislator for all human beings for all time. The fact that none of the words has any definite meaning is not likely to discourage “rationalists” from striving to demonstrate that, say 150 countries in the world have given these words a precise and agreed meaning which binds all the rest. This “purist” concept of law can easily distinguish itself from a grubby “politics” understood as “powerful” interests which deflect from the impartial application of the legal standard, leading to a people having their pure will frustrated. 
     Presumably this was the expectation of the seminar organised under the auspices of the HKU Law Faculty Centre for Comparative and Public Law on  20 March 2014. Experts were called in from all over the world, i.e. Australia, Kenya, the United States, the United Kingdom, Hong Kong and mainland China, to deliberate internationally “written in stone” standards for nomination of candidates for Chief Executive. The meeting was not able to come up with an agreed exhaustive description of the standards of even 100 countries. One of the reasons, apart from the extremely restricted geographical scope of participation in this meeting, was, according to one friend who participated in it, that the academics involved could not easily come out of their own national circumscriptions to make global generalizations. As it is the concluding Report of Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards fell back on article 25 of the ICCPR in its paragraph 5. It states: "In compliance with international human rights law, there ought to be no unreasonable restrictions on people’s right to stand for election”.[xiii]
     In their reflections on democracy, security and economic development in ASEAN countries, Jones, Khoo and Smith speculate that the Western style of global governance according to the promotion of an abstract rationalism, promoting 
a universal condition of natural rights , rather than creating the pre-conditions for universal peace has since the 19th century profoundly unsettled the traditional practice of monarchies, empires and republics. Arguably, such developments have made war over ideas more total, and more frequent, than the limited violence that prevailed in the era that preceded the tyranny of single truths.[xiv]
The task which the three authors set themselves, in the context of ASEAN countries is how to achieve democracy, security and economic/social well-being all together. Jones, Khoo and Smith offer to contrast abstract, rationalist democratic theory, i.e. the assertion and application of formally abstract norms such as article 25 of the ICCPR, with an Aristotelean approach to politics, which requires not only an awareness of the best possible regime, but also what might be the best achievable in the circumstances. Alongside, indeed instead of the lawyers’ ramrod capacity for logic, there is need for the wise ruler’s capacity for prudence and wisdom, not merely a self-discipline in virtue but also a capacity to perceive or otherwise intuit what is possible in the circumstances.[xv]
      Their method consists of case studies of Singapore, Malaysia, the Philippines, Indonesia Myanmar, Thailand and the Indo-China states of Cambodia, Laos and Vietnam. Their conclusions consist of reflections on the experiences of these countries, not prescriptions but insights into the likely consequences of stress upon certain goals and values in particular circumstances. 
      A not entirely dissimilar study is undertaken in the work edited by Albert Chen on Constitutionalism in Asia in the Early 21st Century. This work is and broadly accepts a Western rationalist concept of constitutional development which it then applies to East Asia. However, its case studies are very rich expositions of the ups and downs of constitutional experience in East Asia and it is intended to highlight some of the conclusions on studies of Taiwan and Korea (South), which are, inevitably, not included in the ASEAN study.[xvi]
      Some of the conclusions can be briefly stated, allowing for the “bias” of the authors for what they call democratic realism. This is a doctrine which asserts that political pluralism is a consequence and not a condition of security.[xvii] The authors comment that the experience of democracy in Indonesia, Thailand (before the recent Coup) and the Philippines do indicate a fairly firmly rooted attachment to formal, democratic procedures and some freedom of expression. However, they do not overcome very widespread corruption, immobile bureaucracy and the hierarchical social structures which express themselves in clientalist, populist politics, which actually provoke not only a military response, but also a frustration among politically liberal professional classes. Democracy also provides the occasion for more articulated ethnic dissension, with Muslim secessionist movements in the Philippines and in Thailand. However, democratic politics in Indonesia have helped to approach ethnic tensions constructively. Not surprisingly, the authors point to the well settled, hierarchical and professional structures of government in Singapore and Malaysia that have proved the most effective in economic terms.[xviii]
      The studies on Taiwan and South Korea add considerably to the picture, as they are well known as Asian economic “tigers”. Without commenting on the origins of this economic success in authoritarian regimes – which the authors do not in any case discuss – there are at least two caveats which the authors raise, perhaps even unintentionally in the case of Taiwan. The Taiwan authors are simply ecstatic about the development of democracy since the end of martial law in Taiwan, and especially praise the development of a radical civil society. However, at the same time they remark that the elected institutions of government, Legislature and Presidency are largely unable to function together, partially because of unclear constitutional boundaries, but more so because of identity rooted political differences, making compromise impossible. Therefore, the judiciary has had to step in in a big way to complement the failed government of elected institutions. The judiciary has to provide a framework for the resolution of political differences. This suggests that Taiwan has moved very quickly forward to reflect the pathologies of so-called advanced democracies like the United States and Australia. As political differences certainly concern economic policy, e.g. the trade agreement proposed with China, they are bound to impact upon the country’s economic development. There are also lessons here for Hong Kong, also politically deeply divided on identity politics, viz. the relationship with China.
      The very complex picture of Korean political and constitutional life painted by Kim cannot be easily summarised. However, he appears to stress that even democratically elected Presidencies do not appear to be able to reign in a very marked tendency to authoritarian rule in Korea. He is uncertain how to remedy this institutionally and appears to think that one term Presidencies actually encourage the pathology. More remarkably still, the Presidential tendency to conviction politics, for itself and its circle, combines with a dark connection between bureaucracy and business elites. Maybe partially because of globalization, public office is very much the junior partner in government- business relations. 
      Public order is not able to restrain factional large business group interests. The public itself is very often unable to distinguish legitimate from illegitimate power.

The paper has not had the purpose of offering solutions to the contemporary political crisis in Hong Kong. If any, it has suggested that the crisis is very profound, being related to massive conflicts of political and/or national identity and, in our judgment, especially related to vast divergences in understandings of the role, possibilities and limits of the very idea of Law. Of course understandings of Law are themselves an aspect of issues of identity. 
      While there may be some quick fixes in the short term, e.g. a breakaway of a few Pan-democrats to let the reform package through, in the long term this quick fix would be itself a product of the abstract rationalism which is so much deplored in the paper. Instead what is recommended, in perhaps the self-indulgence of an academic style, is an evolution of Hong Kong away from a fixation on a Beijing – Hong Kong (read London-New York/Washington) conflict and towards South East Asia, a South East Asia in which, of course, China also plays a leading part. In such a development the role of international standards, understood in the classical sense suggested in the last section, would be very large.

Written by Professor Anthony Carty, Sir Y K Pao Chair of Public Law, Faculty of Law, University of Hong Kong.  The paper was delivered on 12 April 2015 at the "International Law Conference of 25th Anniversary of Hong Kong Basic Law", held at the City University of Hong Kong on 11-12 April 2015.

[i] PREM 19/1265 The Future of Hong Kong: Arrangements for Testing the Acceptability in Hong Kong of an Agreement with the Chinese, B J Cartledge to Prime Minister, c Sir Robert Armstrong 26 June 1984.
[ii] See further the unpublished PhD thesis The Modern International Law in the Practices in China during two Opium Wars ended with Unequal Treaties from 1839 to 1860, Ji Shan Qi, University of Aberdeen 2012. In particular the second war, which led to the seizure of Kowloon, was fought contrary to the legal advice of the UK Attorney General and only after a negative vote in the House of Commons led Lord Palmerston to go to the country and win an election on a “my country right or wrong” basis. 
[iii] The UK’s Relations with Hong Kong: 30 years after the Joint Declaration 10th Report of Session 2014-15. 
[iv] See Accordance with international law of the unilateral declaration of independence in respect of Kosovo. China realising the potential effect of this case, submitted a written memorandum opposing the Kosovan action, its first participation in the Court’s proceedings. 
[v] In Democracy in Decline, Steps in the Wrong Direction (McGill-Queen’s University Press 2014), esp. International Law, pp.83-107 
[vi] See also Francis Fukuyama, Political Order and Political Decay, From the Industrial Revolution to the Globalization of Democracy (Profile Books 2014), chapters 27-30 on the spread of democracy as a historical process, emphasising that democracies decline as much as they rise and that increasing judicial activity is usually a mark of increasing formal democratic decline. 
[vii] Legal Issues Relating to Democratic Participation in Hong Kong, Scoping Report 17th October 2014, British Institute of International and Comparative Law, London paragraph 36.
[viii] ibid.
[ix] Moohan and another v The Lord Advocate [2014] UKSC 67, paragraph 28.
[x] Ibid, paragraph 29.
[xi] CCPR/c/CHN-HKG/3 Human Rights Committee Third Periodic Reports of States parties, Hong Kong, China 31 May 2011, paragraph 317. The Report also refers specifically to a mention by Stock VP that article 39 means the ICCPR is applied by the UK from 1976 and as intended to be applied after 1 July 1997 , by reason of the PRC Communication of 20 June 1997 to the Secretary General, includes the reservation attaching to the ICCPR at paragraph 319. 
[xii] Hong Kong’s Implementation of Certain Concluding Observations of the United Nations Human Rights Committee (April 2013), dated 31 March 2014, paragraph 3, page 4. 
[xiii] See Art 25 Roundtable CCPL 20 March 2014 
[xiv] D M Jones, N Khoo M L R Smith, Asian Security and the Rise of China, International Relations in an Era of Volatility (Edward Elgar 2013) at p. 137 in chapter 5, Producing security: state power, democracy and Southeast Asian regionalism. 
[xv] Ibid at pp.142-3.
[xvi] Cambridge 2014, the chapters by Jr Yeh and W-C Chang on Taiwan and J Kim on South Korea at pp 141-167 and pp. 77-100.
[xvii] Asian Security and the Rise of China, at p.142.
[xviii] Ibid, chapter 5 generally.

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