The frustration of democratization efforts in Hong Kong has recently led to nascent calls for its self-determination or even independence from the People’s Republic of China (“PRC”). In a drastic response, Chinese authorities in Beijing issued a ruling to bar activists from entering Hong Kong’s partly elected Legislative Council (“LegCo”).

The ruling concerned a requirement in the Basic Law (the mini-constitution of Hong Kong) that LegCo members must take an oath to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region of the PRC. In effect, it turned this requirement into a substantive political test of “sincerity.” Under this test, those who are not “sincere” in their oaths would not be able to stand for election or assume office. A Beijing official suggested that anyone advocating independence or self-determination would fail this test of “sincerity”.

The ruling is widely criticized, including by the Hong Kong Bar Association, for undermining the rule of law, judicial independence and Hong Kong’s autonomy. However, it also raises issues relating to internationally protected human rights, including freedom of expression (Art 19 ICCPR; Art 10 ECHR), the right to stand for elections (Art 25 ICCPR; Art 3 of the First Protocol to ECHR), and their enjoyment without distinction as to political opinion (Art 2 ICCPR; Art 14 ECHR).

As per these rights, political opinions are protected unless they amount to advocacy for war or hatred (Art 20 ICCPR), aim at destroying others’ rights and freedoms (Art 5(1) ICCPR), incite violence or are incompatible with fundamental principles of democracy (e.g. as the European Court of Human Rights (“ECtHR”) held in Welfare Party). It is thus clear that support for self-determination and even separatism would fall within the ambit of political opinions that are protected by these rights.

While it may be argued that such opinions conflict with territorial integrity and endanger national security, the Siracusa Principles and Johannesburg Principles provide that national security cannot be invoked as a basis for restricting freedoms unless force or threat of force is involved. The ECtHR in Stankov also ruled that non-violent calls for autonomy or secession were protected by freedom of assembly.

The real issue is whether restrictions against candidates with these political opinions are reasonable or proportionate. While requiring legislators to take an oath of allegiance may be reasonable (McGuiness, ECtHR), substantive tests to judge its “sincerity” are much more dangerous.

First, it may prove difficult for such tests of “sincerity” to satisfy principles of legal certainty and foreseeability, as the ECtHR explained in Yabloko; or to be based on “objective” criteria that are “established by law”, as the UN Human Rights Committee (“HRComm”) explained in its General Comment No. 25. The vague nature of “allegiance” could turn any substantive test of sincerity into a speculative or even subjective exercise.

Secondly, the chilling effect would be immense. There is a slippery slope between disloyalty to the state and opposition to the government – especially in one-party states like the PRC. The Supreme Court of the United States in Bond v Floyd warned forcefully that such tests of sincerity “could be utilized to restrict the right of legislators to dissent… under the guise of judging their loyalty.”

It might be possible to cure the above defects if (1) situations of “insincerity” are clearly and narrowly defined; (2) there is an impartial authority with safeguards against abuse of power (Yabloko); and (3) removals from elected office are through fair procedures (General Comment No. 25). None of these are provided for by Beijing’s ruling, under which the person administering the tests of sincerity would mostly be a clerk reporting to an effectively unelected pro-Beijing LegCo President. Courts would have to play a key, but rather difficult, role in supplying such conditions.

Even under these conditions, tests of sincerity can go too far in barring candidates or disqualifying legislators on the basis of their political opinions. Particularly on point is the ECtHR in Tănase, stating that the loyalty required from legislators should be restricted to requiring that any desire to change a country’s constitution and territorial integrity should be pursued in accordance with law. In a pluralistic democracy, especially considering the representation of minorities, legislators should be allowed to “call into question the way a state is currently organized, so long as democracy itself is not harmed.” The HRComm in Gorji-Dinka also found that even a separatist leader should enjoy the rights under Art 25 ICCPR.

Legislators who call for self-determination or separatism may be controversial, but an analysis of international and comparative human rights law suggests that their outright exclusion is not a legitimate response, especially if carried out through the arbitrary, nebulous means of testing the “sincerity” of their oaths of allegiance.