On July 7, the China Daily has published an article ” UK cannot question HK security law “, written by Prof. Huo Zhengxin, a professor of law at China University of Political Science and Law. Here is the full text of the article:
The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region was passed unanimously at the 20th session of the Standing Committee of the 13th National People’s Congress, China’s top legislature, on June 30. This prompted some Western countries to allege the promulgation of the national security law in the SAR “lies in direct conflict with its international obligations under the principles of the legally-binding, UN-registered Sino-British Joint Declaration”.
But the allegation doesn’t hold water on five counts.
The issue should be analyzed in terms of the Vienna Convention on the Law of Treaties, which was concluded in 1969 and came into force in 1980, and the United Kingdom and China both are state parties to it. The VCLT is reflective of customary international law, which governs the treaty relations between and among non-state parties. This is important because China did not accede to the VCLT until Sept 3, 1997. In other words, China was not a state party to the VCLT when the Sino-British Joint Declaration was concluded in 1984.
Joint Declaration should be interpreted in good faith
According to Article 2 of the VCLT, “treaty means 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”. As such, the Sino-British Joint Declaration meets the definition of “treaty”, its formal title notwithstanding.
First, the Sino-British Joint Declaration was concluded between China and the UK, both sovereign states, and the text of the instrument itself indicates it is an agreement between China and the UK. The Joint Declaration consists of eight paragraphs and three annexes, with each part having the same status. In particular, Paragraph 8 avers that “this Joint Declaration and its Annexes shall be equally binding”. Also, the Joint Declaration is “governed by international law”, as it stipulates the sovereign and administrative arrangement of Hong Kong during the transitional period. Hence, it is safe to conclude that the Sino-British Joint Declaration is a bilateral treaty between China and the UK.
The Chinese government has acknowledged the legal status of the Joint Declaration as a legally binding treaty. And the instrument, including the Sino-British Joint Declaration per se and three annexes, was registered as a treaty at the United Nations by the Chinese and British governments on June 12, 1985.
Since the Joint Declaration is a bilateral treaty, the rights and duties of the parties to it should be examined according to the provisions of the VCLT, especially those relating to treaty interpretation. Article 31 of the VCLT says a treaty must be interpreted in good faith and in the light of its object and purpose, and Article 26 enshrines the principle of pacta sunt servanda (agreements are binding and should be implemented in good faith).
The purpose of the Joint Declaration is reflected in its preamble: to reach a “proper negotiated settlement of the question of Hong Kong, which is left over from the past”. The UK acquired Hong Kong Island in 1842 and the Kowloon Peninsula in 1860, and leased the New Territories in 1898 for 99 years by unequal treaties with the Qing Dynasty (1644-1911) when China was weak. Therefore, the overarching purpose of the Joint Declaration is to ensure a smooth transfer of sovereignty of Hong Kong, Kowloon and the New Territories from the UK to China in 1997, and correct the historical injustice; and this is vital to understanding the rights and duties of the parties to the treaty.
Key provisions of treaty need in-depth study
Paragraph 1 of the Joint Declaration is a unilateral statement of the Chinese government, which says China would resume the exercise of its sovereignty over the Hong Kong area (including Hong Kong Island, Kowloon and the New Territories, hereinafter referred to as Hong Kong) from July 1, 1997, which incorporates the principal right of the Chinese government under the instrument. And Paragraph 2 is a unilateral statement of the British Government, which says the UK would hand over Hong Kong to China on July 1, 1997, which, correspondingly, reflects the principal duty of the British government hereunder. The two paragraphs are complementary, and together constitute the key provisions of the instrument.
Paragraph 3 is a unilateral statement of the Chinese government, which sets forth the basic policies of China regarding Hong Kong in 12 subparagraphs. The policies set out in this paragraph are elaborated in Annex I. Paragraphs 4 to 6 and Annexes II and III stipulate arrangements during the transitional period. And Paragraphs 7 and 8 are about the Joint Declaration’s implementation and entry into force.
However, Paragraph 3 is unique in terms of its content and nature. It is different from Paragraphs 1 and 2 because it is “self-governing” and its performance is not dependent on any other paragraph. To be more specific, though Paragraphs 1, 2 and 3 are unilateral statements of one party, Paragraphs 1 and 2 are dependent on each other, as they each cannot be fulfilled without the simultaneous performance of the other. But Paragraph 3 is distinct, as the Chinese government can fulfill it unilaterally and independently without the British government playing any role at all.
Also, Paragraph 3 is different from Paragraphs 4 to 8, since the latter reflect the common agreements of both parties, rather than being unilateral statements by one party alone. So the following conclusions can be drawn:
