China: Allow Peaceful Demonstrations in Hong Kong

The central Chinese and Hong Kong governments should respect Hong Kong people's peaceful advocacy for universal suffrage and refrain from interfering in nonviolent activities planned by the group Occupy Central, Human Rights Watch said today.

The democracy advocacy group Occupy Central announced plans to hold a city-wide "civil referendum" starting on June 20, 2014, during which people in Hong Kong can choose between three proposals for political reform that ensure universal suffrage, as defined by international law. The Basic Law, Hong Kong's quasi-Constitution under Chinese rule, envisions progress towards universal suffrage.

On June 10, China's State Council issued a "white paper" on Hong Kong, stating that the central government has "overall jurisdiction" over the territory, and that Hong Kong's high level of autonomy "is limited to the level of autonomy granted by the central leadership." The white paper also states that Hong Kong leaders, including the chief executive, must be "patriots" who are "loyal to the country." These statements appear to contravene the rights and freedoms set out in the Basic Law and the terms of the 1984 Sino-British Joint Declaration, the international treaty governing the transfer of Hong Kong from Britain to China in 1997. The latter guarantees Hong Kong "a high degree of autonomy" except in foreign affairs and defense after return to Chinese sovereignty.

"The white paper is a clear signal from Beijing to Hong Kong that universal suffrage will not be considered even in the face of mounting public pressure," said Sophie Richardson, China director. "Not only is it unacceptable for Beijing to simply override the Basic Law and the Sino-British Joint Declaration, doing so is also likely to contribute to mounting tensions in Hong Kong, where people have waited for decades for their promised democratic rights."

In recent months, Hong Kong ministers and former Beijing officials have increased their criticisms of the Occupy Central movement. Hong Kong's security chief, Lai Tung-kwok, wrote a newspaper commentary predicting that Occupy Central will turn violent once "hijacked" by "radicals." Zhou Nan, former director of Xinhua in Hong Kong, said that "anti-China forces inside and outside" Hong Kong are using Occupy Central "to seize control of Hong Kong," that the People's Liberation Army is ready to "handle possible riots," and that the central government is ready to interfere if Hong Kong is used as "a base to subvert China's socialist regime under the guise of democracy." Hong Kong Education Secretary Eddie Ng Hak-kim warned students and teachers against participating in Occupy Central.

Since June 13, 2014, Occupy Central's referendum website, which is to be used for electronic voting, has been under "unprecedented massive" distributed denial-of-service (DDoS) attacks, according to the organizers.

The referendum is part of a civil society initiative to push for universal suffrage in Hong Kong, a plan that includes multiple stages. Ultimately the group plans to stage nonviolent civil disobedience in Hong Kong's political and financial district if the Hong Kong and Beijing governments fail to come up with electoral reforms that conform to international universal suffrage standards. In its manifesto, Occupy Central has pledged to engage in activities peacefully; every participant of the eventual sit-in will be asked to sign a pledge of nonviolence.

After returning to Chinese sovereignty in 1997, the rights to peaceful assembly, association, and expression have mostly been respected in Hong Kong. But in recent years Hong Kong activists and nongovernmental organizations have expressed alarm over the increasing number of arrests and prosecutions of protestors, as well as police use of cameras and video recording devices to film demonstrations even when there is no criminal behavior.

Demonstrations in Hong Kong are governed under its Public Order Ordinance, which requires that police be notified of demonstrations with over 30 people seven days in advance and that organizers receive a "notice of no objection" from the government before they can be held. The UN Human Rights Committee, an international treaty body which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), has repeatedly expressed concerns that the ordinance "may facilitate excessive restriction" to the right to freedom of assembly.

The right to peaceful assembly is enshrined in the Hong Kong Bill of Rights, as well as in the Basic Law and the ICCPR, an international treaty which still applies to Hong Kong from the days of British sovereignty. Article 27 of the Basic Law states that "Hong Kong residents shall have freedom of … assembly." Article 21 of the ICCPR states that no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and that are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.

The UN Basic Principles on the Use of Force and Firearms, a non-binding standard that reiterates generally accepted legal principles, provide that law enforcement officials "shall, as far as possible, apply non-violent means before resorting to the use of force" and may use force "only if other means remain ineffective." When the use of force is unavoidable, law enforcement officials must "exercise restraint in such use and act in proportion to the seriousness of the offence." The Basic Principles state that in dispersing assemblies that are unlawful but nonviolent, "law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary."

Between December 4, 2013, and May 3, 2014, the Hong Kong government issued a consultation document on electoral reforms. The consultation document did not mention the ICCPR. This was a noted departure from the previous consultation document published in July 2007, the Green Paper on Constitutional Development.

Human Rights Watch urges the Hong Kong and central governments to ensure that any decision on the 2017 chief executive elections conforms to international human rights requirements, including those of the ICCPR. Any committee established for nominating candidates for the elections should likewise reflect such requirements and be selected by universal suffrage. Human Rights Watch also urges the Hong Kong and central governments to develop a time-bound and detailed plan to put into practice universal and equal suffrage.

"Instead of expending energy criticizing Occupy Central and evading its legal obligations to universal suffrage, the authorities should think quickly how to best implement universal suffrage in Hong Kong," said Richardson. "And if a massive nonviolent sit-in is to take place in Central, it is essential that the Hong Kong police will handle it in a restrained manner avoiding the use of force."