Richard Cullen reviews C. L. Lim's Treaty for a Lost City: the Sino-British Joint Declaration (HKLJ)

Review Article: "Treaty for a Lost City: the Sino-British Joint Declaration"
Richard Cullen
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.797 - 813

Abstract: This book provides a welcome, well-informed review of the essential nature of the Joint Declaration and its political-legal role over time. China maintains that once it implemented the “basic policies” spelled out in the Joint Declaration it had already performed its treaty obligations in full. The case challenging this view, drawing on the Joint Declaration, is not composed of empty arguments. But these are essentially moral (and debatable) arguments linked to the (international law) legal language found in the Joint Declaration. This case is actively shaped to fit within the on-goingongoing Western media campaign arguing that China is failing to meet geopolitical behaviour standards stipulated by the West, which are embodied in that narrative. The intensifying political role of the Joint Declaration is, thus, set to be confirmed as the primary reason it will remain significant, looking forward.

Richard Cullen on Moving Hong Kong beyond the Colonial Shadow (China Daily)

"Moving HK beyond the colonial shadow"

Richard Cullen

China Daily

June 22 2020

In late 1984, China declared, in Article 1 of the Sino-British Joint Declaration (JD), that it would recover all of British Hong Kong with effect from July 1, 1997. In Article 2, the United Kingdom declared that it would restore Hong Kong to China on the same date.

     Almost 33 years later, in March 2017, the US State Department published a fact sheet entitled “Dependencies and Areas of Special Sovereignty”, where Hong Kong is listed. A special footnote explains that: “Under a Sino-British declaration of September 1984, Hong Kong reverted to Chinese control on July 1, 1997. It is now a semi-autonomous entity that exists pursuant to international agreement and maintains its own government apart from the People’s Republic of China.”

     Just 20 years after China recovered Hong Kong from the UK, Washington still speaks, in this note, of China as having “control” over a semi-autonomous Hong Kong, rather than sovereignty. Moreover, despite the fact that in the first two articles of the JD, both China and the UK each refer to making a declaration, the State Department claims that China’s control of Hong Kong arises from an agreement. 

     All Chinese governments since the 19th century have regarded the treaties governing Hong Kong (and other forced foreign concessions) as unequal and thus not valid at international law. This is a primary reason why the JD explicitly avoids the use of the term agreement. The JD signals a clear mutual understanding between London and Beijing that they shall each declare their position. 

     Oriol Caudevilla recently argued convincingly (China Daily Hong Kong Edition, on June 15, 2020, Don’t mistake Hong Kong for a foreign concession) that the HKSAR can never be regarded as some sort of foreign concession like the city of Tangier (now part of Morocco) was from 1923 to 1956. Yet this is a distinct impression which lingers when one reads this recent State Department fact sheet. Indeed, it sometimes feels like Washington still regards Hong Kong as a (manifestly successful) Far East version of Puerto Rico... Click here to read the full text. 

Yash Ghai and Jill Cottrell on Security, Economy, Politics: The Chinese Agenda (new book chapter)

"Conclusion: Security, Economy, Politics: The Chinese Agenda"

Yash Ghai and Jill Cottrell Ghai

in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),

Chapter 17, pp 307-332

Introduction: The story of Article 23 of the Basic Law governing, in part, the relationship between China and Hong Kong, is largely a reflection of the changes in China's perception of its standing at home and abroad. At first China accepted the Basic Law as governing its relationship with Hong Kong and largely adhered to the commitment to ensure Hong Kong's autonomy for 50 years. The Chinese authorities had been greatly disturbed by the impact of the student rebellion in Tiananmen Square, and put it down with great violence including considerable loss of life. Seeing Hong Kong people's strong condemnation of the crackdown, China worried that Hong Kong might become a base for subversion, and hence strengthened the wording of Article 23 of the Basic Law with an aim to desist foreign interventions. The situation is now somewhat different. China, on the whole, welcomes intimate relations with leaders of foreign states and enjoys greater international standing than it did in the 1990s. It also seems less inclined to treat itself as bound by the Joint Declaration and the guarantee of Hong Kong autonomy, and as other chapters in this collection have shown, seems quite wiling to intervene in Hong Kong affairs, including through interpretations of the Basic Law.

     In this concluding contribution to the collection, we discuss the impact of China's economic and global policies on the development of close relationships with foreign states, in spite of the scepticism of citizens in those states as well as in Hong Kong.  In particular, we will argue that China's global economic and investment approach - and especially the Belt and Road Initiative (BRI) - is strengthening its relative international position and as a result, that the people of Hong Kong may find themselves less able to call on international solidarity to ensure that China respects and gives effect to Hong Kong's autonomy, with potential negative implications for the Rule of Law.  The discussion in this chapter reveals that China is coherent in its domestic and global policies through which it aims to extend control in political, security and economic terms (echoing the Chines regime's priority on advancing 'sovereignty, security, and development interests').  China's treatment of Hong Kong therefore makes for interesting comparisons with, and shed lights on, China's activities in the international political, security and economic order...

        

Johannes Chan and Wing Kay Po on the Applicability of the Chinese Constitution in Hong Kong (SCMP)

"How China's constitution ensured that the Basic Law remains pre-eminent in Hong Kong"

Johannes Chan and Wing Kay Po

South China Morning Post

6 August 2018

In recent years, there seems to be a tendency for mainland Chinese officials to omit or avoid references to the Sino-British Joint Declaration in any discussion about “one country, two systems”, as if the Joint Declaration were non-existent or wholly irrelevant. It is an undeniable historical fact that for about 150 years between 1842 and 1997, Hong Kong was under British jurisdiction. The British government introduced to Hong Kong, among other things, the common law system and a free capitalist economy. By the end of the last century, Hong Kong enjoyed a legal, social, political and economic system and lifestyle that were quite different from that on the mainland.

     It was precisely because of this historical fact that the British and the Chinese governments entered into what turned out to be two years of negotiation on the future of Hong Kong in 1982, resulting in the signing of the Joint Declaration in 1984. Under the Joint Declaration, the British government relinquished any sovereignty claim over Hong Kong in 1997, in return for a promise from the Chinese government to preserve the previous systems and lifestyle in Hong Kong and not to apply the socialist system and policies of the mainland to Hong Kong after its resumption of sovereignty over Hong Kong... Click here to read the full article.

CL Lim on Chinese Citizenship and the Hong Kong Booksellers Affair (LQR)

"The Sino-British treaty and the Hong Kong booksellers affair"
CL Lim
Law Quarterly Review
October 2016, Issue 132, pp 552-556

Recent events in Hong Kong raise questions which recall the post-war prosecution of the famous Nazi propaganda broadcaster, William Joyce (Joyce v DPP [1946] A.C. 347; [1946] 1 All E.R. 186). Joyce was an American citizen who had acquired a British passport by stating, be it by deliberate misrepresentation or simple mistake, that he had been born a British subject. Pleading his alien status was his strongest defence to a charge of treason committed outside the realm for it would then need to be asked how an alien could be guilty of treason in these circumstances. However, since he had for long lived within the realm and acquired a valid British passport, that defence did not save him. Lord Jowitt L.C., who wrote for the majority in the House of Lords, considered that the true question was not where treason can be committed but by whom (at 357). Their Lordships held that acquiring a British passport, by whatever means, entitled Joyce to the Crown’s protection and thus having sought such protection he owed a reciprocal duty of allegiance to the Crown. The majority of their Lordships considered that this duty of fidelity was owed for as long as the passport remained valid. Lord Porter dissented on the ground that it was for the jury to determine whether William Joyce had renounced British protection by that time, for, while it was assumed that he had entered Germany with it, the passport was never found, and Joyce himself claimed that by then he had decided to become a German citizen. The trial judge had instead directed the jury that the question of Joyce’s continuing allegiance was an issue of law, and because of that Lord Porter would have allowed Joyce’s appeal on the ground that the jury had been misdirected (at 374–382). 

      A similar issue now arises in Hong Kong under Chinese law, in respect of those Hong Kong Chinese residents whom China has for long considered to be "Chinese Hong Kong compatriots". In the recent Hong Kong booksellers affair, the police had received various reports last year concerning an eventual total of five missing persons who had disappeared in the period between October and December. All five were connected to the same Hong Kong bookstore. Allegedly, three had disappeared while present on the Chinese mainland, one while in Thailand and, in the final case of Mr Lee Po, from Hong Kong itself. The whole affair received global press coverage amid ample public speculation that Mr Lee in particular had perhaps been unlawfully removed to the mainland by the Chinese authorities. Mr Lee denies this but his case culminated in the British Foreign Secretary’s report to Parliament in February this year that, although "the full facts of the case remain unclear", "our current information indicates that Mr. Lee was removed to the mainland without any due process under HKSAR law". Mr Hammond concluded that "this constitutes a serious breach" of the Sino-British Joint Declaration (Secretary of State for Foreign and Commonwealth Affairs, Six Monthly Report on Hong Kong, July to December 2015, 11 February 2016, at p.3)... Full article available on Westlaw.

New Scholarship by Professor Roda Mushkat

"Reconfiguring China’s Environmental Governance Regime: A Highly Complicated and Decidedly Uneven Journey"

Roda Mushkat

Journal of International and Comparative Law

Vol. 2, 2015, pp 29-59 

Abstract: In terms of its size, the Chinese economy has climbed to the top layer of the global pyramid and is currently positioned just behind its American counterpart, which it is commonly expected to overtake by the end of the present decade. This achievement is the product of a relentless drive forward spanning over three decades. It has not been a smooth ride in all respects because, inter alia, the “economic miracle” has been enormously costly from an ecological perspective. Wide-ranging 2014 adjustments to the Environmental Protection Law seek to remedy this situation. They constitute a necessary but — as matters stand, their unmistakable significance notwithstanding — not a sufficient condition for fully realising the goal of ecological modernisation, which requires broader and deeper institutional reconstruction.

"Killing the Proverbial Two Birds with One Stone: New Ways to Expand the Comparative Law Methodological Repertoire and Enhance the Effectiveness of Inter-jurisdictional Environmental Governance Regimes" 

Roda Mushkat

Trade, Law & Development

Vol. 6, 2014, pp 229-287

Abstract: Comparative legal analysis, which was once deemed to be an esoteric and peripheral academic and professional activity, has significantly grown in scope and sophistication. However, its progress has not manifested itself equally across the board. Comparative law still lacks a solid methodological foundation and does not systematically address this gap by borrowing appropriate tools from other disciplines. There is no dearth of predominantly qualitative social science techniques that are suitable for the task. Some are more robust than others but, as the dissection of the Southern China governance regime for combating transboundary pollution illustrates, recourse to even the most rudimentary ones may yield valuable insights.

"The Intricacies of Implementing International Law: A Juxtaposition of Theories with the Actualities of the Sino-British Joint Declaration Regarding the Future of Hong Kong" 

Roda Mushkat

Chinese (Taiwan) Yearbook of International Law and Affairs

Vol. 31 (2014), 2015, pp 1-65

Abstract: International legal scholarship has developed into a multidimensional enterprise, possessing firm analytical underpinnings, as well as descriptive and evaluative ones. The conceptual element has loomed increasingly large on the research agenda in the past five decades or so. Several new theoretical constructs have emerged and have been brought to bear on a wide-range of relevant behavioral phenomena. Be that as it may, this has been an unbalanced process. The paradigms that have crystallized and have gained currency have not been combined in a genuinely synergistic and flexible fashion. The implementation of the Sino-British Joint Declaration, in a complex and rapidly evolving setting, arguably suggests that this is a notable chink in the analytical chain and that a more broad-based, inclusive, and eclectic approach is called for.

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.