Senate Hearing, Evaluating the Impact of the ‘Umbrella Movement,’ December 3, 2014

Daniel R. Russel | Richard C. Bush | Sophie Richardson

Daniel R. Russel
U.S. Assistant Secretary of State, Bureau of East Asian and Pacific Affairs

Introduction

Today’s hearing is timely given the debate taking place in Hong Kong over electoral reforms and the implementation of universal suffrage for the 2017 selection of Hong Kong’s next Chief Executive. I welcome this opportunity to share with the Committee the Administration’s views and response to political developments in Hong Kong, particularly with regard to the National People’s Congress Standing Committee’s (NPCSC) August 31 decision and the Hong Kong Government’s response to the protests. I would also like to touch on the importance of our relationship with Hong Kong under the “One Country, Two Systems” framework.

Secretary Kerry is watching the situation in Hong Kong closely. The Administration believes that an open society, with a high degree of autonomy and governed by the rule of law, is essential for Hong Kong’s stability and prosperity – indeed this is what has made Hong Kong such a successful and truly global city. As we do around the world, the United States advocates in China for internationally recognized fundamental freedoms, such as freedom of peaceful assembly and freedom of expression.

Long before Hong Kong made its way into headlines, we made clear to Beijing our support for universal suffrage and the aspirations of the Hong Kong people under the “One Country, Two Systems” framework. We will not back off on that support. We have reaffirmed our position publicly and privately in numerous meetings with Chinese and Hong Kong officials at all levels of government. Most recently, Secretary Kerry raised Hong Kong in meetings with Chinese interlocutors in the run-up to the APEC Summit in Beijing, and President Obama made these points there in his meetings with President Xi. As the President said at a press conference in Beijing with President Xi standing next to him, the United States is going to “consistently speak out on the right of people to express themselves, and encourage that the elections that take place in Hong Kong are transparent and fair and reflective of the opinions of people there.”

The “One Country, Two Systems” model, which is a long-standing Chinese position put forward by Deng Xiaoping and reflected in the PRC’s constitution, has provided a solid foundation for our strong relationship with Hong Kong. It means, among other things, that China accepts that Hong Kong government will retain its own legislative and judicial powers, as well as its own laws. And it means that Hong Kong’s freedoms should be guaranteed by the PRC. At the time of reversion in 1997, China – under the “Basic Law” - committed to several important principles: “One Country, Two Systems,” “Hong Kong people governing Hong Kong,” maintenance of “a high degree of autonomy,” and that the Chief Executive and all the members of the Legislative Council should be elected by “universal suffrage.”

The “One Country, Two Systems” principle has enabled Hong Kong to flourish as an important example of prosperity, tolerance, open expression, and free market ideals. “One Country, Two Systems” has been central to Hong Kong’s economic success. Hong Kong currently ranks first in the Heritage Foundation’s Index of Economic Freedom. The PRC, I would note, ranks 137th.

Mr. Chairman, preserving Hong Kong’s unique system and character serves the best interests of all parties. So we are concerned by signs that China’s commitment to the “One Country, Two Systems” model, as well as to maintaining a high degree of autonomy, are eroding. While Hong Kong’s media environment remains far less restricted than on the mainland, the steady downward trend in media freedom is troubling. The ability of Hong Kong’s judiciary system to remain independent in the long term will be another critical indicator of China’s commitment to the unique “One Country, Two Systems” model.

In addition, the legitimacy of Hong Kong’s Chief Executive will be greatly enhanced if the promise of universal suffrage is fulfilled. By this I mean an election that provides the people of Hong Kong a meaningful choice of candidates representative of the voters’ will. This means allowing for a competitive election in which a range of candidates with differing policy approaches are given an opportunity to seek the support of eligible Hong Kong voters.

That is why the Administration has called on the PRC to uphold its commitments to Hong Kong under the Basic Law to preserve Hong Kong’s freedoms and autonomy, including through universal suffrage. We encourage Beijing, the Hong Kong government and the people of Hong Kong to work together to advance Hong Kong’s democratic development, establish universal suffrage by 2017, and preserve Hong Kong’s autonomy and its free and open society.

Beijing’s Decision and the Nominating Committee

Based on the Sino-British Joint Declaration and the Basic Law from 1997, in 2007 the Standing Committee of the National People’s Congress (NPCSC) agreed that the election of Hong Kong’s chief executive “may be implemented by the method of universal suffrage” in 2017. Over the last year, the people of Hong Kong, the Hong Kong Government, and the authorities in Beijing have vigorously debated how that process should take place.
Early this year, the Hong Kong Government held a first round of public consultations to discuss the implementation of universal suffrage for the 2017 election. Hong Kong residents submitted numerous suggestions for designing the electoral system and many Hong Kong residents voiced their desire for significant democratic reform. I visited Hong Kong in early May and met with a broad cross-section of the public, including representatives of civil society and various political parties, in addition to the head of the Legislative Council and senior officials in the Hong Kong government. I can attest to the vigorous and open debate in Hong Kong about how best to implement universal suffrage.

That debate intensified during the summer. Local NGOs conducted an online poll of public opinion in which almost 800,000 Hong Kong residents expressed pro-democracy views, and in early July, perhaps as many as 500,000 Hong Kong residents took part in the annual pro-democracy demonstration. The Hong Kong Government in July submitted a report to Beijing based on its results of the public consultation and the NPCSC then issued its decision on August 31.

The NPCSC decision on August 31 set limits on the selection of the Chief Executive by universal suffrage. It limited the number of candidates to two or three, required the Chief Executive to be a person who “loves the country and loves Hong Kong,” and mandated that any nominee must receive the endorsement of more than half of the 1,200 person nominating committee. While the NPCSC’s decision conformed to requirements of the Basic Law in the literal sense, it was criticized by many Hong Kong groups and triggered the public protests that are still underway. The objection to the NPCSC decision of August 31 is that it would effectively block non-establishment candidates from competing in the election for Chief Executive.

The Protests and the Hong Kong Government Response

On September 26, a week-long student strike and independently-organized demonstrations against Beijing’s decision escalated when a few dozen university students entered the grounds of Hong Kong Government headquarters. When a crowd surged onto a major adjacent thoroughfare, Hong Kong police used tear gas to disperse the crowd. Rather than dispersing the protesters, however, the use of tear gas prompted more residents to take to the streets and protesters settled into three main protest locations.

On October 21, the Hong Kong Government and leaders from the Hong Kong Federation of Students engaged in one round of televised talks, but there has been little dialogue reported between the two sides since. The Hong Kong Government has complained that the protest movement lacks representative leadership it can negotiate with. Protesters have countered that the Government is not taking their demands seriously.

Within the past two weeks, Hong Kong police have enforced civil court injunctions to clear certain protest sites. While there were some clashes between police and protesters in clearance operations in the Mongkok area, we assessed that both parties had for the most part acted with patience and restraint. The alarming flare-up on November 30 near Hong Kong Government offices demonstrates, however, that the potential for violence remains and that all sides need now more than ever to exercise restraint and to lower tensions.

Since these protests began in September, we have emphasized at all levels our support for freedom of peaceful assembly and freedom of expression without fear of retribution. We have encouraged the Hong Kong authorities and the protestors to address their differences through dialogue. We have urged the Hong Kong government to act with restraint and the protestors to express their views peacefully. We have also categorically denied allegations from China that the United States is in any way involved in the protests. It is disingenuous to suggest that this debate is driven by outsiders when it is so clearly about Hong Kongers’ hopes for their future.

Next Steps

It is important to note that the electoral reform process in Hong Kong is still underway. Due to the protests, the Hong Kong Government delayed a second round of public consultations, which are now expected to begin later this month. These consultations are meant to allow the public to provide input into how the nominating committee will be constituted and the mechanism by which candidates will be selected. It will be during this round of consultations that the Government and the residents of Hong Kong explore options for devising a nominating system that can garner a sufficient number of votes to pass the legislature.

In order for electoral reforms to be implemented, a bill to amend the Basic Law must pass the Legislative Council with a two-thirds majority and be approved by Beijing. This legislative action is planned for the first half of 2015. If the Legislative Council does not amend the Basic Law by the summer of 2015, Beijing has said that the 2017 election for Chief Executive would again be carried out under the existing system under which the Chief Executive is selected by an Election Committee of 1,200 members rather than directly by Hong Kong’s five million potentially eligible voters. This would be a significant setback to the democratization process, and it underscores the importance of the efforts by Hong Kong’s authorities and its people to design an electoral process that maximizes progress toward universal suffrage under the Basic Law.

Conversely, if the Basic Law is amended to provide for a multi-candidate selection process for the Chief Executive, 2017 will mark the first time in Hong Kong’s history that its citizens will be given a voice in that choice. A multi-candidate competitive election would be a major step in Hong Kong’s, and indeed the People’s Republic of China’s, political development.

U.S. Interests and Actions

Mr. Chairman, allow me to describe the importance we place on our relationship with Hong Kong. This relationship rests on three pillars: shared values, economic and cultural relations, and people-to-people ties. Hong Kong has long reflected and protected fundamental freedoms: freedom of expression, freedom of peaceful assembly, a strong independent legal system, rule of law, a free media, and an active civil society – all values shared with the United States.

We are also linked by strong economic ties. Hong Kong is the ninth-largest market for U.S. exports and the sixth-largest market for U.S. agricultural products. Despite Hong Kong’s small population, our trade surplus with Hong Kong is our largest surplus with any single trading partner. More than 1,400 American companies have invested in and set up shop in Hong Kong. Hong Kong is a key source of foreign direct investment in the United States, as well. Hong Kong’s world class financial markets, which include Asia’s second-largest stock exchange and third-largest foreign exchange market, are supported by a transparent regulatory regime and strict oversight. Hong Kong is a strong voice in both APEC and the WTO in favor of free trade, often in alignment with our own goals.

This is possible because of Hong Kong’s special status under the principle of “One Country, Two Systems” that allows Hong Kong to operate as a separate customs territory from China and exercise autonomy in areas other than foreign and defense affairs, including its judiciary system and its U.S. dollar-linked currency and financial system. This has allowed us to develop a robust relationship in law enforcement arenas – including export control, counterterrorism, counter-proliferation, anti-money laundering, and anti-corruption – in which Hong Kong’s authorities work with the United States to protect our security interests. The United States has signed a wide range of agreements with Hong Kong since the handover, which provide for extensive technical cooperation in these and other areas. For example, Hong Kong counterparts respond positively to more than 95 percent of requests from U.S. Customs to search containers and the Hong Kong Customs and Excise Department has actively enforced the Convention on the International Trade in Endangered Species (CITES).

In addition, we have deep social, cultural, and people-to-people ties, boosted by the tens of thousands of U.S. citizens residing in Hong Kong, and the thousands more who visit Hong Kong, visa-free, every day for business or tourism. Hong Kong is one of the highest per capita sources in the world of foreign students in America’s higher education system and hosts thousands of American students, academics, and journalists as well.

Conclusion

The United States and China each have a vested interest in Hong Kong’s continued stability, autonomy, and prosperity. It is therefore important that China upholds its international obligations and commitments that Hong Kong’s high degree of autonomy will be respected and nurtured. It is in all of our interests to see electoral reform in Hong Kong that provides the people of Hong Kong a meaningful choice of candidates, and that the 2017 elections in Hong Kong will be transparent, fair, and reflective of the opinions of the Hong Kong people.

We have also consistently counseled the Hong Kong government to exercise restraint and called on protesters to exercise their right to freedom of expression peacefully. We have consistently supported further dialogue between the government and protesters as the best way for Hong Kong to move this important debate forward. An open society that respects the rights of its citizens and universal freedoms, with the highest possible degree of autonomy and governed by the rule of law, is essential for Hong Kong’s continued stability and prosperity.

We will continue to voice our support for universal suffrage in Hong Kong and to stand up for universal human rights and fundamental freedoms. We will stand up for Hong Kong’s autonomy under “One Country, Two Systems” and the Basic Law. We will continue to encourage the government and people of Hong Kong to work together peacefully to advance Hong Kong’s democratic development. We believe this engagement remains the most effective way to preserve Hong Kong’s autonomy and free and open society.

Mr. Chairman, I thank you for the opportunity to appear before you today to discuss Hong Kong. I look forward to answering any questions you and others from the Committee may have.

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Richard C. Bush
Director, Center for Northeast Asia Policy Studies, Brookings Institution

There has been a wide range of views in Hong Kong about the value of democratic elections.

So far, the Chinese government has consistently chosen to engineer the Hong Kong electoral system so that no individual it mistrusts could be elected chief executive (CE) and no political coalition that it fears could win control of the Legislative Council (or LegCo). To elect the chief executive, it created an election committee composed mainly of people it trusts. For LegCo, it established functional constituencies that give special representation to establishment economic and social groups. These functional constituencies together pick half the members of LegCo. As a result, Hong Kong’s economic elite has dominated those institutions.

Major economic interests in Hong Kong have been happy with the current set-up because it provides them with privileged access to decision-making and the ability to block initiatives proposed by the democratic camp. Within this establishment, there is long-standing belief that majority rule would create irresistible demands for a welfare state, which would raise taxes on corporations and wealthy individuals and so sap Hong Kong’s competitiveness. 

The public, on the other hand, supports democratization. In the most representative election races (for some LegCo seats), candidates of the pro-democracy parties together get 55 to 60 percent of the vote. Those parties have tried for over twenty years to make the electoral system more representative and to eliminate the ability of Beijing and the establishment to control political outcomes. But there are divisions within the pan-democratic camp between moderate and radical factions, based on the degree of mistrust of Beijing’s intentions.

There is a working class party and a labor confederation that supports Beijing and is supported by it. On electoral reform, it has followed China’s lead.

Of course, any electoral system requires the protection of political rights. The Joint Declaration and the Hong Kong Basic Law protected those rights on paper, and the judiciary generally has upheld them. But there are serious concerns in Hong Kong that political rights are now being whittled away.

The August 31st decision of the PRC National People’s Congress-Standing Committee on the 2017 Chief Executive election confirmed the fears of Hong Kong’s pan-democratic 2 camp that Beijing does not intend to create a genuinely democratic electoral system. That
decision almost guaranteed there would be with some kind of public protest.

Before August 31st, there had been some hope in Hong Kong that China’s leaders would set flexible parameters for the 2017 election of the chief executive, flexible enough to allow an election in which candidates that represented the range of local opinions could compete on a level playing field. Instead, the rules the Standing Committee of the National People’s Congress laid down were interpreted as ensuring that Beijing and the local Hong Kong establishment, by controlling the nominating committee, could screen out candidates that they saw as a threat to their interests.

I happen to believe that before August 31st there was available a compromise on the nomination process. The approach I have in mind would have liberalized the composition of the nominating committee so that it was more representative of Hong Kong society and set a reasonable threshold for placing someone in nomination. This would have been consistent with the Basic Law (a Chinese requirement) and likely ensured that a pan-Democratic politician could have been nominated (the democrats’ minimum hope). Hong Kong voters would have had a genuine choice. There were Hong Kong proposals along these lines. Such an approach would have had a chance of gaining the support of moderate Democrats in Legislative Council, enough for reaching the two-thirds majority required for passage of the election plan.

Reaching such a compromise was difficult because of the deep-seated mistrust between the Hong Kong democratic camp and Beijing, and within the democratic camp. If there was to be movement towards a deal Beijing would have had to signal that it was serious about such a compromise, in order to engage moderate democrats. It chose not to, and an opportunity was lost.

Why Beijing spurned a compromise is unclear.

Perhaps it interpreted its “universal suffrage” pledge narrowly, to mean one-person-one-vote, and not a competitive election. Perhaps it wished to defer a truly competitive contest until it was sure that one-person-one-vote elections would not hurt its interests. Perhaps Beijing was overly frightened about the proposed civil disobedience campaign called “Occupy Central.” Perhaps it judged that radical democrats would block their moderate comrades from agreeing to a compromise. Perhaps China actually believed its own propaganda that “foreign forces” were behind the protests. Perhaps it never had any intention of allowing truly representative government and majority rule. But if Beijing believed that taking a hard line would ensure stability, it was badly mistaken.

Whatever the case, the majority in Hong Kong saw the August 31st decision as a bait-and-switch way for Beijing to continue to control the outcome of the CE election and as a denial of the longstanding desire for genuine democracy. A coalition of student leaders, Occupy Central supporters, democratic politicians, radical activists, and middle class people resorted to the only political outlet they had: public protest. If the Chinese government had wished to empower Hong Kong radicals, it couldn’t have hit upon a better way.

Although Beijing’s August 31st decision guaranteed a public response in Hong Kong, the form it took was unexpected. Student groups preempted the original Occupy Central plan, and the takeover of three separate downtown areas resulted, not from a plan but from the flow of events. The Hong Kong Police did overreact in some instances, but each time it sought to reestablish control, there was a surge of public support for the core protester groups, mobilized by social and other media.

The protests were fueled by more than a desire for democracy.

Also at work were factors common in other advanced societies. Hong Kong’s level of income and wealth inequality is one of the highest in the world. Young people tend to believe that they will not be able to achieve a standard of living similar to that of their parents. Real wages have been flat for more than a decade. Buying a home is out of reach for young people, in part because a small group of real estate companies control the housing supply. Smart and ambitious individuals from China compete for good jobs.

Hong Kong students have gotten the most attention in the current protests. Just as important however, are older cohorts who are pessimistic about their life chances. They believe that the Hong Kong elite, which controls both economic and political power, is to blame for these problems. They regard genuine democracy as the only remedy.

The Hong Kong government’s response has been mixed but restrained on the whole. The Hong Kong police did commit excesses in their attempt to control the crowds. Teargas was used once early on, and pepper spray on a number of occasions since then. There was one particular incident where police officers beat a protester excessively (for which seven of the officers involved were arrested last week).

It is worth noting that the scenario for which the police prepared was not the one that occurred. What was expected was a civil disobedience action in a relatively restricted area with a moderate number of protesters who, following their leaders’ plan, would allow themselves to be arrested. What happened in late September was very different. There were three venues instead of one. Many more protesters took part, and they had no interest in quickly offering themselves for arrest. Instead, they sought to maintain control of public thoroughfares, a violation of law, until Beijing and the Hong Kong government made major concessions. Even when courts have ordered some streets cleared, those occupying have not always complied.

After the initial clashes, the Hong Kong government chose not to mount a major crackdown but instead to wait out the protesters. It accepted the occupation for a number of weeks, and now seeks to clear some streets pursuant to court order. Moreover, the government undertook to engage at least one of the students in a dialogue over how to end the crisis. In the only session of the dialogue to occur, on October 21st, senior officials floated ideas to assuage some of the protesters’ concerns and to improve upon the electoral parameters laid down by Beijing.

The dialogue has not progressed for two reasons. First of all, the Hong Kong government is not a free agent in resolving the crisis. Beijing is the ultimate decider here, and the Hong Kong 4 government must stay within the guidelines it sets. Second, the student federation leaders who took part in the dialogue are not free agents either. They represent only one of the student groups, and other actors are involved. With its leadership fragmented, the movement has never figured out its minimum goals and therefore what it would accept in return for ending the protest. It underestimated Beijing’s resolve and instead has insisted on the impossible, that Beijing withdraw the August 31st decision. Now, even though the Hong Kong public and the leaders of the original Occupy Central effort believe that the protesters should retire to contend another day, the occupation continues.

For those who believe that the rule of law is a fundamental pillar of Hong Kong’s autonomy, the last two months have been worrisome. Once some members of a community decide for themselves which laws they will obey and which they won’t; once the authorities pick and choose which laws they will enforce and abide by, the rule of law begins to atrophy. The protesters’ commitment to democracy is commendable. The generally restrained and peaceable character of their protest has been widely praised. But something is lost when both the community and its government begins to abandon the idea that no-one is above the law.

Regional views implications

Observers have believed that the implications of the Umbrella Movement are greatest for Taiwan, because Beijing has said that Taiwan will be reunified under the same formula that it used for Hong Kong (one-country, two systems). And there was momentary media attention in Taiwan when the Hong Kong protests began, but it quickly dissipated. The vast majority of Taiwan citizens have long since rejected one-country, two systems. China’s Hong Kong policies only reconfirm what Taiwan people already knew.

Hong Kong events also send a signal to all of East Asia’s democracies, not just Taiwan. Anyone who studies Hong Kong’s politics and society comes to the conclusion that it has been as ready for democracy as any place in East Asia, and that its instability in recent years is due more to the absence of democracy than because it is unready.

The long-standing premise of U.S. policy is that Hong Kong people are ready for democracy. Since the protest movement began, the U.S. government has reiterated its support for the rule of law, Hong Kong’s autonomy, respect for the political freedoms of Hong Kong people, and a universal-suffrage election that would provide the people of Hong Kong “a genuine choice of candidates that are representative of the peoples and the voters’ will.” Washington has also called for restraint on all sides.

Finally, the strategic question for East Asia is what the rise of China means for its neighbors. That question will be answered in part by China’s power relative to the United States and others. But it will also be answered by what happens between China and its neighbors in a series of specific encounters. Through those interactions, China will define what kind of great power it will become. North Korea, the East and South China Seas, and Taiwan are the most obvious of these specific encounters. But Hong Kong is as well. If the struggle there for a more democratic system ends well, it will tell us something positive about China’s future trajectory. If it ends badly, it will say something very different.

Looking forward, several options exist for resolving the crisis and only one of them is good. One option is a harsh crackdown by China. Article 18 of the Basic Law gives Beijing the authority to declare a state of emergency in Hong Kong if “turmoil” there “endangers national unity or security and is beyond the control” of the Hong Kong government. In that case, Chinese national laws would be applied to Hong Kong and could be enforced in the same way they are in China. We would then see crowd control, Chinese style. I believe this scenario is unlikely as long as Beijing has some confidence that the protest movement will become increasingly isolated and ultimately collapse.

A second option is that the occupation ends but the unrepresentative electoral system that has been used up until now continues. That would happen because two-thirds of the Legislative Council is required to enact the one-person-one-vote proposal of the Chinese and Hong Kong governments for electing the chief executive. Getting two-thirds requires the votes of a few democratic members. If all moderate democrats oppose the package for whatever reason, then the next CE will be elected by the 1,200-person election committee, not by Hong Kong voters. Protests are liable to resume. There is a danger that in response, Beijing will move quietly to restrict press freedom, the rule of law, and the scope for civil society beyond what it has already done.

The third scenario is for a late compromise within the parameters of Beijing’s August 31st decision. The goal here would be to create a process within the nominating committee that would make it possible for a leader of the democratic camp to be nominated for the chief executive election, creating a truly competitive election. That requires two things. First, the nominating committee must be more representative of Hong Kong society. Second, the nominating committee, before it picks the two or three election nominees, should be able to review a greater number of potential nominees. Done properly, that could yield the nomination of a democratic politician whom Beijing does not mistrust but whose platform would reflect the aspirations of democratic voters. Prominent individuals in Hong Kong have discussed this approach in print, and Hong Kong senior officials have hinted a willingness to consider it. For such a scenario to occur, Beijing would have to be willing to show more flexibility than demonstrated so far; the Hong Kong government should be forthcoming about what it has in mind; and some leaders of the democratic camp must be willing to engage both Beijing and the Hong Kong government. In the climate of mutual mistrust that has deepened since August 31st, that is a tall order. But at this point it appears to be the best way out of a bad situation.

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Sophie Richardson
China Director for Human Rights Watch

Mr. Chairman, Ranking Member Rubio, and distinguished Members of the subcommittee, thank you for inviting me to testify today. As protestors remain on the streets of Hong Kong, this discussion is timely, and we hope to clarify the critical human rights issues at stake. It is appropriate to recall that in 1997 the hope was that not only would Hong Kong’s autonomy be respected, and the rights to the freedom of assembly, expression, and political participation there would remain intact, but also that these realities might have a positive effect on the mainland. People in Hong Kong have continued to make clear how much they value an independent judiciary, a free press, a meritocratic civil service, and a professional police force. Yet developments of the past year have shown that in fact, the mainland’s politics and disdain for rights are having alarming consequences for those realities, a territory of critical importance to the United States and within the region.

Since 1997, Human Rights Watch has expressed concern over erosions of Hong Kong’s autonomy, particularly with respect to the independence of the press, increased interference into Hong Kong politics, and a growing role for Beijing’s Central Liaison Office in Hong Kong. Consistent with its attitude towards other regions on its periphery from Tibet to Taiwan, President Xi Jinping’s government appears to perceive Hong Kong people’s greater demands for a fully elected government—one that responds to their concerns and one in which they are entitled to according to law—as an existential threat. Beijing has insisted that the Chief Executive must be someone who passes a political litmus test set by the Chinese Communist Party, has made clear that efforts by people in Hong Kong to press their demands through every possible peaceful avenue will be rejected, and has moved swiftly to crush any expressions of sympathy in the mainland for pro-democracy efforts in Hong Kong.

The extraordinary demonstrations by a cross-section of people in Hong Kong are in turn not simply about the composition of Hong Kong’s nomination committee. After waiting patiently for years for China to fulfill its promise to give democracy, many are angry at the central government’s overreach, particularly with respect to its decision to retain control over the selection of Hong Kong’s leader. Many expressed growing frustration and a sense of marginalization by the Hong Kong government, arguing that it increasingly failed to respond to the interests of the majority on issues ranging from education policy to urban planning. They are also a reaction to threats to key independent institutions in the territory that have helped protect human rights, and to growing unease over whether the Hong Kong government is serving the interests of the Hong Kong people or the central government when it comes to key decisions. In the broadest sense, the current tensions are local and logical reactions of people who have enjoyed civil liberties, an independent judiciary, a free press, and a reasonably responsive government, but who see these freedoms increasingly threatened, and who have some sense of how these rights are denied just across the border.

Beijing’s legal obligations with respect to Hong Kong

The 1984 Sino-British Joint Declaration spells out the terms for transfer of Hong Kong from British to Chinese control. That document stipulates that Hong Kong shall have “a high degree of autonomy” in matters other than national defense and foreign policy, while the Basic Law, Hong Kong’s functional constitution, states that universal suffrage is the “ultimate aim” for the selection of the chief executive, the top leader, as well as members of the Legislative Council.

The Basic Law also provides that the International Covenant on Civil and Political Rights (ICCPR) applies to Hong Kong, and the Covenant’s guarantee of universal and equal suffrage means that people not only have the right to vote in elections, but also that they should have the right to stand for elections regardless of their political views. The committee responsible for monitoring the implementation of the ICCPR has also stated that when the law requires a certain threshold of supporters for nomination, “this requirement should be reasonable and not act as a barrier to candidacy.”

Hong Kong’s Basic Law states that Hong Kong can move towards the goal of universal suffrage by amending the electoral methods in three steps. First, two-thirds of all Legislative Council members have to endorse the amendments. Second, the current chief executive has to agree to it. Lastly, the amendments have to be reported to China’s Standing Committee for the National Peoples’ Congress (NPCSC) for approval.

The central government, in a series of decisions made since 1997, has backtracked on this obligation to institute universal and equal suffrage. The commitment to allowing electoral reform to be decided by Hong Kong people was first broken on April 6, 2004, when the NPCSC made an “interpretation” of the Basic Law adding a requirement that the chief executive submit a report to Beijing justifying the need for any further democratization. The decision shifted the initiative in proposing electoral reforms to Beijing's hand-picked chief executive, and away from the Legislative Council. In April 2004, directly after this NPCSC decision, the Chief Executive submitted a report that downplayed the need for substantial reform, and the NPCSC quickly followed this with a decision that ruled out universal suffrage for the 2007 selection of the chief executive and the selection of the 2008 Legislative Council.

In 2007, it ruled again that there would not be universal suffrage for the next elections of the chief executive and the Legislative Council in 2012. However, the 2007 decision also said that universal suffrage was “maybe” in store for the next chief executive election and Legislative Council elections in 2017 and 2020, respectively.

Recent developments

As Hong Kong authorities began in late 2013 to prepare for a public consultation on how the 2017 elections should be carried out, Li Fei, a top mainland official and chairman of Beijing’s Basic Law Committee, gave a speech stating that Hong Kong’s chief executive must be an individual who “loves the country and loves Hong Kong,” and that people who “confront the central government” do not meet this criterion. This followed similar pronouncements by Li’s predecessor, Qiao Xiaoyang, as well as the director of the Liaison Office of the Chinese Government in Hong Kong, Zhang Xiaoming. Li added that the nomination committee for the chief executive would be restricted to a small selected group of Hong Kong people who will make a “collective” decision on candidates allowed to run in the election. The position countered earlier proposals by prodemocracy groups advocating a process in which all Hong Kong voters would be considered “members” of the nominating committee and candidates securing a specified number of public nominations would get on the ballot.

Over the subsequent months, the Hong Kong government and large parts of the public made their views clear about democracy and about Hong Kong’s future. In early June 2014—shortly after the 25th anniversary of the Tiananmen Massacre—the Chinese government issued a “white paper” asserting “overall jurisdiction” over Hong Kong, and that Hong Kong “is limited to the level of autonomy granted by the central leadership.” This was widely seen as a violation of the commitment to “one country, two systems” in which Hong Kong would be granted “a high degree of autonomy,” except in foreign affairs and defense. While the substance of the “white paper” was not new, and carries no legal weight, its timing and language were seen as abrasive and unnecessary by many in Hong Kong.

In late June 2014, more than 700,000 Hong Kong people—one in five registered voters— participated in an unofficial, non-binding referendum to choose among three proposals for political reform that ensure universal suffrage via the pro-democracy “Occupy Central with Love and Peace” movement. The central government dismissed this effort as illegal and the product of “anti-China forces.” In mid-July, Hong Kong Chief Executive (CE) Leung Chun-ying submitted the results of the government’s public consultation to the central government, claiming it was “mainstream opinion” that a subsequent CE “love China and love Hong Kong,” that the power to nominate CE candidates should remain vested in a committee controlled by Beijing, and that the legislature should not be democratized before the 2017 elections. The results of the public consultation as presented to the central Chinese government were clearly manipulated, and failed to reflect different views articulated by large segments of the population.

Following the report’s submission, on August 31, 2014, the NPCSC handed down its decision, which catalyzed the Occupy demonstrations: while it would allow all eligible voters in Hong Kong to cast ballots for the territory’s chief executive, it would impose a stringent screening mechanism that effectively bars candidates the central government in Beijing dislikes from nomination for chief executive.

In reaction to the Chinese government’s August 31 rejection of open nominations for Hong Kong’s chief executive, Occupy Central protest leaders, pan-democrats, and student protest leaders vowed to launch an “era of civil disobedience.” Students boycotted classes between September 22 and 26; as that boycott came to a close, a group of students entered Civic Square, in front of the government headquarters in Admiralty, without permission. Police surrounded the students, and arrested and pepper sprayed some of them. The police treatment of the students provoked a large number of people—about 50,000— to congregate around Civic Square on
September 27. “Occupy Central” organizers then announced that they were officially launching their planned demonstrations.

On September 28, Hong Kong police declared the protest illegal, and cordoned off the government headquarters grounds. The announcement drew even more protesters, who demanded access to the government  headquarters. After an hours long standoff with police, protesters walked out onto a major thoroughfare that separated them from government headquarters. Police responded with pepper spray, batons, and 87 cans of tear gas. Protesters refused to disperse, and by the next morning they had occupied three sites in Hong Kong. For weeks, two of these sites remained occupied by hundreds of protesters, despite repeated police clearances, and assaults by persons opposing the Occupy movement. After police cleared one site in Mongkok on November 26, protesters responded with “fluid occupation” which involves repeatedly “crossing roads” slowly along the stretch of the former occupy sites to temporarily block traffic, as well as a failed escalation on November 30 to block all access to government headquarters in Admiralty.

Human rights concerns

Human Rights Watch has a host of concerns about human rights violations in Hong Kong, both specific to the protests and to larger issues. On the core issue of electoral arrangements, the Basic Law guarantees the continued application of the International Covenant on Civil and Political Rights to Hong Kong, which in turn guarantees that people shall not only have the right to vote in elections, but also that they should have the right to stand for elections regardless of their political views. While the August 31 NPCSC decision will expand the vote to choose the Chief Executive to all eligible voters, it retains central government control over the nominating committee that will determine who may run as a candidate for chief executive. As recently as October 23, 2014, the UN’s Human Rights Committee expressed concern that the proposed nomination process poses “unreasonable restrictions” on the right to run.

The protests themselves have involved a number of human rights violations.  Mainland and Hong Kong authorities deemed the protests illegal because organizers had not obtained permission under the Public Order Ordinance. Yet this Ordinance is in tension with international law because it imposes significant restrictions on the freedom of assembly without considering the importance of the right to gather to express grievances, and is susceptible to political abuse.

-- The Hong Kong police’s use of force, including tear gas and pepper spray, against unarmed protestors is of deep concern. While we note as positive Chief Executive Leung’s condemnation of violence against protestors on October 4, and the arrest of seven police in late November for their brutal beating on October 16 of a peaceful demonstrator, the October 6 statement by the Chief Executive that authorities would use “all actions necessary” and evidence of further incidents involving excessive use of force by the police have undermined public confidence in the strict adherence of the police to the UN Basic Principles on the Use of Force and Firearms. Human Rights Watch calls on the Hong Kong government to conduct an independent investigation into police conduct during the protests.

-- We are similarly deeply concerned about arrests of peaceful protestors at the beginning of the demonstrations in late September, but also during the late November efforts to clear protestors from particular locations, including the arrests of student demonstration leaders Joshua Wong and Lester Shum.

-- We are also concerned that protesters appear to be subject to various types of intrusive surveillance by both the Hong Kong and Chinese governments, which apparently have based decisions to arrest protest leaders and bar others from entering China on their online postings and participation in the protests. The sense of pervasive collection and monitoring of participation in public debates and protests have thrown a pall over Hong Kong’s robust civil liberties.

Larger implications

The central and Hong Kong government’s failures to engage meaningfully with popular demands for greater democracy in the territory—through a formal consultation process, through a civic referendum, through months of peaceful demonstrations—leaves a longtime bastion of respect for rule of law on edge.

Beijing has made its disdain for the views of people in Hong Kong clear through its extraordinary overreach regarding autonomy, electoral arrangements, and a host of other policy issues. And because the Chinese Communist Party cannot countenance the idea that people in China might actually want participatory governance, it has repeatedly dismissed the demonstrations as a product of external, “anti-China forces.”

It has also made clear that it will not tolerate any expressions of support in the mainland for the demonstrators in Hong Kong. More than 100 individuals have been detained in the mainland in recent months for doing as little as posting pictures of themselves holding a sign expressing support for Hong Kong people’s demand for genuine universal suffrage. Beijing’s unwillingness to allow student leaders or those sympathetic to the demonstrations from Hong Kong into the mainland is an utterly anachronistic and counterproductive strategy for dealing with the concerns there.

None of this bodes well for expectations that China will comply with key international legal obligations, come to grips with peaceful dissent, or accept—for Hong Kong, for Tibet, or for Xinjiang—the idea that many successful governments around the world have officials and administrations from regions benefiting from autonomy arrangements with views divergent from those at the national level. It is also an ominous sign for Hong Kong as a critical space for activists and organizations that work on or monitor developments in China. The efforts of nonviolent protestors in Hong Kong has also triggered expressions of concern across the region, prompting reactions from Tokyo, which rarely speaks publicly about human rights concerns in  China, and from Taiwan, where voters appear to have been particularly motivated to reject a government arguing for closer ties to Beijing.

US response

The United States has expressed concern about violence against and by demonstrators, about the right to peaceful assembly, and the rights to vote and to run, and officials have said they have expressed these concerns directly to the highest levels of the Chinese government. Some US commentary, such as the initial statement regarding the August 31 NPCSC interpretation, did not accurately characterize the problem, while other remarks are superficially sensible—calling, for example, that differences be addressed through peaceful dialogue—but seem to deny the reality that Hong Kong peoples’ efforts to do just that have been ignored. President Obama’s comments on Hong Kong while in Beijing were so calibrated as to be convoluted, and he and other US officials have repeated so frequently that the US has had no role in fomenting or sustaining the demonstrations that it seems more concerned in assuaging Beijing’s irrational fears than in standing up robustly for democratic rights.

We believe the US’ response to be factually accurate but functionally and diplomatically ineffective. It makes the mistake of focusing disproportionately on the reactions of the Chinese government while forgetting to demonstrate solidarity with those on the front lines of a struggle for democracy. It is appropriate to ask why President Obama could be so publicly restrained on the topics of elections and democracy in Beijing yet a few days later offer up extensive commentary and support on the same subject in Burma, and shortly after in Australia. One thinks about visible gestures of solidarity for democracy elsewhere—for example, US Assistant Secretary of State Victoria Nuland handing out bread to demonstrators in Maidan Square, American ambassadors observing elections (or expressing concerns about those elections’ shortcomings) in other parts of Asia, or the US vociferously decrying the rollbacks of democratic rights in other parts of the world. Why not Hong Kong?

To be so reticent has three problematic consequences. It undermines the very purpose of the US Hong Kong Policy Act, and it enables other governments, which for better or for worse take their cues on these issues from the US, to remain virtually silent. Arguably most problematic, it telegraphs to pro-democracy activists in Hong Kong and the mainland that they can likely only count on perfunctory support or recognition from the United States.

Recommendations

Physically removing demonstrators from the streets of Hong Kong will do little to answer their underlying grievances, and arguably will serve to exacerbate them. Already tensions between protesters and police have risen to a breaking point. The most critical and urgent step the central and Hong Kong governments can take is to revisit the territory’s undemocratic electoral arrangements and ensure that appropriate ones are fashioned—as required by article 45 of the Basic Law—“in light of the actual situation,” where the majority favors genuine democracy. We urge that both take immediate action, including by developing a time-bound and detailed plan, to put into practice universal and equal suffrage. Both should ensure that any proposals for nominations for the 2017 chief executive elections conform to international human rights standards, including those set out in the ICCPR. Any committee established for nominating candidates for the elections should conform to such requirements.

While it is reassuring to a point to see Hong Kong authorities investigate several police officers who were caught on camera viciously beating a protestor, that confidence is undermined by repeated incidents of excessive use of force. In just the past few days police have appeared to use excessive force in arresting student protest leaders Joshua Wong and Lester Shum on November 26 in Mong Kok as they stood by observing police; no warning or peaceful request to surrender to authorities were issued before police tackled them to the ground. In Admiralty and Mong Kok in the past 48 hours police have used pepper spray at close range after tearing off demonstrators’ protective goggles, and used batons to hit people who were clearly trying to leave these areas.

The authorities should meet with protest leaders, given that the single discussion held in October yielded no results. Hong Kong authorities should submit a new report to the central government acknowledging broad support for genuine democracy and ask the NPCSC to clarify or retract its August 31 decision to make the nomination committee for the chief executive genuinely “broadly representative,” as articulated in the Basic Law. The Hong Kong authorities should also take steps to further democratize the semi-democratic Legislative Council. The central government in Beijing should realize Hong Kong’s political system is unsustainable and must be fixed to make it more responsive to people in the territory. Each of the chief executives handpicked by Beijing has proven deeply unpopular with significant numbers of people in Hong Kong. At the political level, it would be encouraging if the senior leadership in Beijing could accept the idea that people in the mainland and Hong Kong want democracy, and not construe Hong Kong peoples’ demands for democracy as a threat to national security. At a minimum, Beijing should stop arresting people in the mainland for peaceful expressions of support to the demonstrators, and lift whatever restrictions have been put in place so that demonstrators can enter the mainland.

It is encouraging to see the reestablishment of a Hong Kong caucus here in the Congress, and the introduction of an updated Hong Kong Policy Act. We believe that increased US government scrutiny and regular reporting are and should be seen as a positive obligation—an opportunity to identify critical developments and points of leverage in a territory of considerable diplomatic, economic, and strategic interest to the United States. Equally important, we urge the US to be consistent in its support to democratic movements around the world. The people of Hong Kong deserve no less than their counterparts in other countries.