Understanding relationship between Joint Declaration and the Basic Law

Controversy is a universal phenomenon - be it on political, legal, social, cultural or economic issues - and it does not always produce a correct answer. This has been true with the case of the Sino-British Joint Declaration, signed by the then premiers of both countries in 1984 and ratified by both national legislatures in 1985.

More than 30 years have lapsed but the opposition still tends to think Britain always has an obligation and the power to supervise implementation of the Joint Declaration as a signatory party. On the other side, the pro-establishment camp believe both signing parties have accomplished their missions upon Hong Kong's handover or at most not later than the beginning of this century, so the Joint Declaration has had no role or function since then.

Both views are partially correct and partially incorrect. The Joint Declaration was considered a treaty when it was signed and will always be until it lapses; the question should be: How it should be executed and whether there is any supervisory arrangement there.

There are two types of treaties: Self-executing and non-self-executing. A self-executing treaty can be directly enforced without domestic legislation, and the party to the treaty may supervise and be supervised as to its obligations, whereas a non-self-executing treaty requires legislation to implement before its provisions can be enforced.

If the Joint Declaration had been a self-executing treaty, then either party might have inquired another party for its execution. On the other hand, had the joint declaration been a non-self-executing treaty, then both parties might not be able to make such a direct inquiry on each other's enforcement, for such a treaty had to be implemented through domestic legislation which would be regarded as an internal matter of the nations so concerned. One might inquire, however, whether there were discrepancies between the treaty and the domestic law.

Unfortunately the Joint Declaration as a whole is neither self-executing nor non-self-executing but a mixture of both. Only a small portion of the Joint Declaration is self-executing, for example, Article 1 stated that the government of the People's Republic of China had decided to resume the exercise of sovereignty over Hong Kong with effect from July 1, 1997; and Article 2 stated that the government of the United Kingdom declared that it would restore Hong Kong to the PRC with effect from July 1, 1997. Annex II "Sino-British Joint Liaison Group" is also self-executing.

Most of the Joint Declaration is, however, non-self-executing. For example, Article 3 with 12 items of basic policies of the PRC regarding Hong Kong and Annex I "Elaboration by the PRC's government of its basic policies regarding Hong Kong" are non-self-executing. Annex III "Land leases" is also the same. By virtue of Article 3(12) of the Joint Declaration, the basic policies and the elaboration in Annex I will be stipulated in a Basic Law by the National People's Congress and they will remain unchanged for 50 years. Annex III would also be so implemented in this law.

Therefore, both parties might supervise the performance of each other's obligation merely on a few provisions of the Joint Declaration that were self-executing, but these provisions had been fully implemented either on July 1, 1997 or Jan 1, 2000 for the remaining works, from the viewpoint of a self-executing treaty.

As the majority of the Joint Declaration is non-self-executing, discrepancies between the Joint Declaration and the Basic Law might exist if both parties had failed to cooperate. It was reported during the drafting of the Basic Law that both parties had already exchanged views on the draft of the Basic Law, to avoid unnecessary conflicts after the Basic Law became effective. The sincerity on the Chinese side must be acknowledged, recognized and admired in this respect.

Britain cannot exercise any supervisory power on the non-self-executing part of the Joint Declaration, concerning the basic policies and their elaboration by the Chinese government incorporating in the Basic Law, but that does not necessarily mean there is no relationship between the Joint Declaration regarding the said basic policies and their elaborations, and the Basic Law.

Pursuant to Article 159(4) of the Basic Law, it is required that "No amendment to this Law shall contravene the established basic policies of the PRC regarding Hong Kong." It is further clarified that "The basic policies of the PRC regarding Hong Kong have been elaborated by the Chinese government in the Sino-British Joint Declaration" as mentioned in paragraph 2 of the Preamble of the Basic Law.

That is to say, any amendment to the Basic Law should be subjected to and restrained by the basic policies and their elaboration established by the central government who had willingly put the said basic policies and their elaboration down in the Joint Declaration. So it may only be correct to say for certainty that the policies and their elaboration regarding Hong Kong will have legal effects on any amendment to the Basic Law, and nothing more.

(HK Edition 08/10/2017 page8)