Bulletin n. 1/2016
June 2016
INDICE
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
  • Gregory S. Gordon
    When One Country, Two Systems Meets One Person, One Vote: The Law of Treaties and the Handover Narrative through the Crucible of Hong Kong's Election Crisis
    in Melbourne Journal of International Law , vol. 16, issue 2 ,  2015 ,  344-397
    In Hong Kong's recent election crisis - a non-violent uprising against China pre-selecting candidates for Chief Executive and thus foreclosing civic nomination - both sides (establishment and pro-democracy) have attempted to interpret the term 'universal suffrage' based exclusively on its inclusion in Hong Kong's mini-constitution, the Basic Law. In so doing, however, they have given short shrift to the agreement that gave rise to the Basic Law in the first place: the 1984 Sino-British Joint Declaration. But while the Joint Declaration provides important textual insights, it simultaneously raises significant issues regarding the application of the law of treaties. For example, did the Joint Declaration terminate upon Hong Kong's July 1997 transfer to China and the effective date of the Basic Law? Even if still valid, is its language too vague to offer meaningful interpretive assistance? And does the United Kingdom's 1976 Hong Kong exclusion reservation to art 25(b) of the International Covenant on Civil and Political Rights, which provides for universal suffrage, survive the handover? Applying the law of treaties ultimately reveals that the Joint Declaration is still in force and can be interpreted to provide for civic nominated elections in Hong Kong. Nevertheless, on deeper consideration, reliance on traditional treaty law in this context is cumbersome and inefficient. This article posits that the inherently confusing situation of the Hong Kong handover, wherein a decolonising liberal democracy negotiated what amounts to a recolonisation with a communist dictatorship stipulating creation of a hybrid political system, calls for new approaches to treaty doctrine, including formulation of a principle of implied reservation termination and re-sequencing treaty interpretation to allow consideration of extrinsic evidence, rather than pure text, in the first instance. A wider interpretive berth, in turn, reveals a China far more sympathetic to progressive features in Hong Kong's constitution than commonly believed. Most significantly, Zhao Ziyang, China's chief negotiator, emerges as a political liberal who embraced parliamentary features as capitalistic performance enhancers. And even after Zhao Ziyang's post-Tiananmen Square downfall, the Chinese leadership reckoned that progressive elements were needed in the Basic Law to help curb Hong Kong brain drain after the Tiananmen Square massacres. Overall, this new approach to treaty law yields a better calibrated and historically more fulsome analysis which confirms that the Basic Law's reference to 'universal suffrage' may be interpreted to contemplate civic nominated candidates in Hong Kong's elections.
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