The State Parties to the Joint Declaration are the United Kingdom and China. If it is argued by the United Kingdom that China is in breach of this treaty there may be a remedy under international law.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
“Our responsibility is to strive to work for the people. Every sentence, every action, every policy, must all be to the people’s benefit. If there are mistakes, they shall be rectified. This is what is called to work for the people.” Taken from a poster carried by a Hong Kong Protester
British rule over Hong Kong can be traced to the 19th century, The British House of Commons Library says: “ Hong Kong island was ceded to Great Britain by China after the first Opium War in 1842. Further territory was added after the second Opium War and in 1898, when Great Britain obtained the New Territories on a 99-year lease. Preparations for Hong Kong’s return to China began in the 1980s. On 19 December 1984, the UK Government and the Government of the People’s Republic of China (PRC) signed The Sino-British Joint Declaration on the Question of Hong Kong. On 1 July 1997, the UK transferred sovereignty over Hong Kong to the PRC. Hong Kong is now a Special Administrative Region of the PRC”.
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| Jiang Zemin and Prince Charles at the handover ceremony in 1997 CREDIT: AFP |
On 30 June 2017 Reuters reported that “China said … the joint declaration with Britain over Hong Kong, which laid the blueprint over how the city would be ruled after its return to China in 1997, was a historical document that no longer had any practical significance. In response, Britain said the declaration remained in force and was a legally valid treaty to which it was committed to upholding”.
The Sino-British Joint Declaration states inter alia: the current social and economic systems will remain unchanged for 50 years following the handover (to 2047), as would its existing rights, freedoms and lifestyle. This explicitly includes rights and freedoms of the person, of speech, of the press, of assembly, of travel, of movement, of correspondence, of strike…
On 4 April 1990, The Basic Law of the Hong Kong Special Administrative Region (The Basic Law) was adopted by the National People's Congress of the PRC. It entered into force on 1 July 1997. The Joint Declaration is an integral part of the Basic Law.
The Basic Law is a constitutional instrument for the Hong Kong Special Administrative Region. It encompasses within a legal document the concept of "One Country, Two Systems", bestowing a high degree of autonomy which the “Hong Kong people ruling Hong Kong” are endowed with.
In May 2020 The Central Government in Beijing adopted a law that would make criminal any act of: secession - breaking away from the country; subversion - undermining the power or authority of the central government; terrorism - using violence or intimidation against people activities by foreign forces that interfere in Hong Kong.
The people of Hong Kong are concerned that China could set up under this law its own institutions in Hong Kong responsible for security. The current protests on the streets are for two reasons: one is that the Chinese law is contrary to established principles of international treaty law, argued on the valid basis that the Sino British Joint Declaration is a treaty recognized and registered in the United Nations under treaty law; and the other is that the autonomy of the Hing Kong people guaranteed under the Joint Declaration and attendant incorporated law as discussed above is infringed leading to arbitrary and capricious arrests of people of Hong Kong will prejudice democratic principles enunciated under the rule of law prevalent in Hong Kong will be seriously eroded.
There are some in Hong Kong who are reported as believing that the judicial system in Hong Kong will come to be a replication of the system that prevails in Beijing (whatever that means) while the BBC says : “ China expert Willy Lam is concerned the law could see people punished for criticizing Beijing - as happens in mainland China. People believe this will affect free speech and their right to protest. In China, this would be seen as subversion”.
As mentioned above, China’s response to the position taken by the people of Hong Kong is that the Joint Declaration is a “historical document that no longer had any practical significance”. From a legal standpoint the Joint Declaration is an international treaty under the Vienna Convention on the Law of Treaties which defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; The Convention goes on to say that the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.
The Vienna Convention provides further that every treaty in force is binding upon the parties to it and must be performed by them in good faith and that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. A treaty is interpreted in good faith according to the ordinary meaning of the words contained therein.
One of the important provisions of the Vienna Convention carries the requirement that the invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, will not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.
The State Parties to the Joint Declaration are the United Kingdom and China. If it is argued by the United Kingdom that China is in breach of this treaty there may be a remedy under international law. Anthony Aust, in his celebrated book Modern Treaty Law and Practice says: “If the breach has a continuing character, the State in breach is under and obligation to cease the conduct causing the breach. To do so would not of course absolve it from responsibility for the consequence of the breach”. The Vienna Convention on the Law of Treaties goes on to say that any one of the parties to a dispute concerning the application may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; and any one of the parties to a dispute concerning the application or the interpretation of any provision may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.
The author is a former senior official of the United Nations system
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