Hong Kong’s International Law Problem

In the years leading up to Hong Kong’s return to Chinese sovereignty in 1997, Beijing was keen to reassure the world that nothing significant would change in the territory. Business elites and local politicians alike busied themselves with reassuring their foreign counterparts or with seizing on evidence of foreign support for the transition. At the heart of Beijing’s play for international support was the Sino-British Joint Declaration, a 1984 treaty that laid down the terms for China’s governance of Hong Kong until 2047. The Joint Declaration contained extensive guarantees of economic and legal continuity, as well as political freedoms; it even provided for the continued application of international human rights treaties to Hong Kong. Upon signing the Joint Declaration in December 1984, then-Chinese leader Deng Xiaoping took pains to reassure the British delegation that “China will always keep its promises.”

Yet, 30 years later, the bargain embodied in the Joint Declaration is unraveling. PEN America and the International Federation of Journalists (among many others) have described erosion of press freedom in the former British colony, especially in the wake of 2014’s Umbrella Movement protests. The U.K. House of Commons’ Foreign Affairs Committee noted worrying developments in the areas of freedom of expression and freedom of assembly—after the Committee was denied entry to Hong Kong by Beijing (itself a breach of the Joint Declaration, which gave Hong Kong authority to make its own immigration decisions). More recent statements of international concern, most notably over the enforced disappearance of the “Causeway Bay Five” booksellers, have drawn the standard response from the Chinese Foreign Ministry of “interference” in domestic affairs. These developments signify a growing contempt for public international law by Hong Kong and Chinese officialdom, and point to a growing resistance to any form of accountability for whether Beijing has kept to its word on Hong Kong.

These attitudes have even come to color the city’s debate over immigration. Fights over immigration, along with appeals, frequently xenophobic or racially-tinged, to block “illegal” migrants, are no stranger to global politics. Yet in Hong Kong the debate has taken a particularly unusual turn. In January 2016 C.Y. Leung, Hong Kong’s Chief Executive, drew the ire of NGOs when he suggested that the territory might withdraw from the United Nations Convention Against Torture (“Torture Convention”), ostensibly to stem a tide of “fake” refugees entering Hong Kong. Despite uproar from local NGOs, many pro-Beijing politicians have taken Leung’s lead, eagerly endorsing withdrawal from the Torture Convention. Former Security Secretary and current National People’s Congress deputy Ambrose Lee suggested, during the NPC’s annual meeting in March 2016, that Beijing withdraw Hong Kong from the Torture Convention. Regina Ip, a legislator and another former Security Secretary, even proposed that torture claimants be detained in an “offshore” camp in Shenzhen—perhaps taking cues from Australia’s “Pacific Solution” of shipping asylum seekers to Nauru.

The Hong Kong government claims to be inundated with “non-refoulement” claimants—people who claim that they cannot be expelled from Hong Kong, as they would face torture upon their return to the countries they left. Withdrawal from the Torture Convention, the government argues, would relieve it of its obligation of non-refoulement under Article 3(1). Yet this argument is fanciful at best. The International Covenant on Civil and Political Rights (ICCPR), which also contains a non-refoulement obligation, also binds the Hong Kong government. More significantly, as Hong Kong’s Court of Appeal has acknowledged, non-refoulement has itself become a rule of customary international law. Simply put, withdrawing from the Torture Convention would not relieve Hong Kong of its non-refoulement obligations. (Nor would it alleviate the plight of non-refoulement claimants already stuck in legal limbo in Hong Kong.)

If withdrawal from the Torture Convention would not affect Hong Kong’s non-refoulement obligations, why have so many pro-Beijing politicians supported it? One possible reason is that withdrawal from the Torture Convention implicates a far broader spectrum of issues. In its most recent report on Hong Kong, the Committee Against Torture (the panel of experts responsible for monitoring parties’ implementation of the Torture Convention) noted problems ranging from how torture is defined in Hong Kong law to the excessive use of force against demonstrators to the continued absence of any legal arrangements for the transfer of criminal suspects between Hong Kong and Mainland China—one of the underlying issues in the abduction of Lee Po from Hong Kong. Viewed against this laundry list of complaints, withdrawing from the Torture Convention solely due to difficulty in meeting non-refoulement obligations which would continue even after withdrawal begins to seem like a pretext to evade international scrutiny of a host of other areas, such as failure to investigate police brutality during the Occupy demonstrations.

The ongoing argument over the legality of advocating Hong Kong’s secession from China provides another example of the debasement of international law. Following the establishment of the pro-independence Hong Kong National Party in March 2016, officials and politicians in Hong Kong and Beijing have fallen over each other to out-harangue anyone suggesting self-determination or independence. Secretary for Justice Rimsky Yuen, for instance, has repeatedly asserted that the mere suggestion that Hong Kong should be independent is, in itself, criminal, and that freedom of expression is “irrelevant” to the legality of discussing independence. In an even more remarkable statement, legislator and constitutional law professor Priscilla Leung claimed that the ICCPR did not protect the mere advocacy of independence. Yet none of these statements withstands even a brief examination of the ICCPR and its explanatory instruments, which apply to Hong Kong through the Joint Declaration, the Basic Law (the city’s constitutional document), and the city’s Bill of Rights. The U.N. Commission on Human Rights’ 1984 Siracusa Principles explain how far limits to civil liberties such as freedom of expression can go. In terms of exceptions based on national security, such as those relied upon by Priscilla Leung and others, the Siracusa Principles declare that national security may only be invoked “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.” Nor, the Principles continue, can national security justify “imposing vague or arbitrary limitations.”

Taken in isolation, these two examples might be ascribed to the stupidity of politicians more keen to toe Beijing’s line than to engage with the complexities of international law. Yet these are not isolated events. Rather, they form part of a broader pattern of ignorance and contempt for international law within Hong Kong and Beijing officialdom. Questioned about the status of the Sino-British Joint Declaration in December 2014, Hong Kong’s Constitutional and Mainland Affairs Secretary Raymond Tam declared that the treaty had lapsed; for good measure, he added that China’s “basic policies” toward Hong Kong in Article 3 of that treaty were unilateral declarations and not legally binding. Neither assertion survives a cursory reading of the Joint Declaration. Similarly, in May 2015, Zhang Xiaoming, head of Beijing’s Liaison Office in Hong Kong, referred to ICCPR Article 25, which defines international standards for universal suffrage, as a “pseudo-proposition to mislead the public.”

What should cause more disquiet, however, is that these denunciations of international law have not drawn robust, well-informed defences of international law in response. In an unorthodox response to C.Y. Leung’s threat to withdraw from the Torture Convention, the Hong Kong-based Refugee Union endorsed the move, for reasons that had more to do with the government’s “Unified Screening Mechanism” for addressing non-refoulement claims than with the treaty itself. U.K.-based advocacy group Brits for Hong Kong suggested that Whitehall declare “the Sino-British Joint Declaration null and void” with a view to wresting sovereignty from Beijing—a prospect that, put charitably, raises any number of political and legal hurdles that effectively make the possibility of Hong Kong independence unattainable in the near future.

Such responses represent a missed opportunity. As Zhang Dejiang’s recent visit to Hong Kong demonstrated, the Hong Kong and Beijing governments have gone to extraordinary lengths to isolate and silence domestic dissent. In the absence of effective channels for political dialogue at home, international fora such as the treaty review mechanisms for the Torture Convention and ICCPR may become one of the few viable methods to hold Beijing to its commitments to Hong Kong. A sophisticated grasp of public international law that affords the ability to counter specious arguments from the Hong Kong and Beijing governments and their sympathizers will be a key element of the long-term fight to hold Beijing to its promises on Hong Kong.