CL Lim on Britain's 'treaty rights' in Hong Kong

"Britain's 'treaty rights' in Hong Kong"
CL Lim
The Law Quarterly Review
July 2015, Vol. 131, pp. 348-354

Recent controversy over democratic reform in Hong Kong has, at its heart, the decision of August 2014 by the Standing Committee of the National People’s Congress (NPCSC) to restrict the choice of candidates while allowing the Hong Kong electorate to elect Hong Kong’s Chief Executive in 2017.

     Critics say that Britain has a "treaty responsibility" in the matter. They intend to refer to treaty obligations arising under the Sino-British Joint Declaration of 1984. However, these obligations are res inter alios acta. Any suggestion that there could be treaty responsibilities which may be owed by Britain to Hong Kong, or its people, is unsound. Nothing in the conduct of successive British Governments seems to have ever suggested this. A more realistic proposition would be that China owes Britain certain treaty obligations, the current Hong Kong controversy involves a breach of Britain’s treaty rights, and since Britain has not hitherto pressed its rights it now has the "responsibility" to do so. All that can be meant by British "responsibility" is that Britain owes a moral responsibility to Hong Kong to press its own treaty rights against China.

      For its part, Beijing has rejected any notion of British moral responsibility. More importantly, Beijing has also denied that there is any treaty right involved in the recent controversy let alone a breach of the Joint Declaration. The fact that the Joint Declaration states nothing about choosing Hong Kong’s Chief Executive by universal suffrage would tend to support Beijing’s view. The instrument in which such an express stipulation may be found, however, is Hong Kong’s Basic Law. Prior to the 1997 handover, the colonial government had attempted to democratise Hong Kong’s Legislative Council (LegCo). But there never was any point in doing that which could easily be undone by Beijing upon Hong Kong’s return to China. Everything therefore depended upon the outcome of what were, then, ongoing discussions between 23 Hong Kong and 36 Beijing representatives on the enactment of a Basic Law for post-handover Hong Kong. As Lord Patten had acknowledged in a speech to LegCo in October 1992, any colonial initiative will as a practical matter have to converge with the Basic Law.

    The upshot of all this was that, while it is merely a piece of Mainland Chinese legislation, all roads lead to the Basic Law... Because the Joint Declaration (Pt XIII, annex I) also states that "the provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force", it makes the rules of the Human Rights Covenant "relevant" to the interpretation of the Joint Declaration. These rules are "applicable" to any Sino-British treaty commitment concerning electoral reform because art.25(b) of the Covenant guarantees the "right to vote and to be elected at genuine periodic elections which shall be by equal and universal suffrage". There is a British treaty reservation which had excluded art.25(b)’s application to colonial Hong Kong, and which China subsequently preserved, but the reservation applies only to the "establishment" of an elected "Executive or Legislative Council". Arguably, Beijing has already decided to favour such "establishment" and Britain can say that the reservation no longer applies. 

      In sum, the argument for a British treaty right rests upon a prolonged argument about treaty interpretation, the essence of which is that commitments in the Joint Declaration ought to be amplified by terms contained in the Basic Law and that while Britain may have acquiesced to China’s previous interpretations of the Basic Law, this cannot now be taken for granted; not least, because the Human Rights Covenant also needs to be taken into account in interpreting the Joint Declaration... Full text version available on Westlaw.