Hong Kong's electoral standoff: the bigger picture
Tony Carty says a chief executive nomination process that was not sympathetic to China would be a strange disregard of national interest and security in a world of heightened tensions
Article 25 of the International Covenant on Civil and Political Rights provides that every citizen shall have the right to stand for election and to vote without unreasonable restrictions. In the case of Hong Kong, there is an original UK reservation to the applicability of the article to the territory, continued by Beijing.
The arguments around the legal effectiveness of this reservation are well known and complex. What has still to be recalled is that international law, of which the covenant is a part, remains the law among sovereign states. It regulates the relations of states on 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 most states. At the same time, there is no international judicial authority or legal sanctioning framework, whereby states impose on one another legal duties with respect to one another's internal affairs.
Also, as a matter of international relations theory, the world community does not constitute the shape of individual national communities; they constitute themselves and then come to face one another at the international - that is, inter-state - level. Disputes and conflicts shape individual countries' relations with one another, but there is no overwhelming global power that shapes all the world's states systematically according to any particular model.
This is the true context of the development of international legal 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 that the chief executive will be appointed by the central government on the basis of the results of local elections or consultations.
The now published archival records of the British cabinet and prime minister's papers from 1984 show clearly that the British recognised how, obviously, a directly elected chief executive would greatly favour the autonomy of Hong Kong, but that so much could not be obtained. Given this fact, the record also 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.
The Chinese perspective was that Hong Kong was torn from the Chinese motherland in two notorious "opium wars". This history is fundamental to the question of 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.
