The Legal Regime of Hong Kong after 1997: An Examination of the Joint Declaration of the United Kingdom and the People's Republic of China

The Legal Regime of Hong Kong After 1997: An Examination of the Joint Declaration of the United Kingdom and the People's Republic of China by Nancy C. Jackson INTRODUCTION .................................................. 1. DOMESTIC LEGAL REGIME .................................. The Basic Law: Hong Kong's "Constitution"............. 1. Hong Kong's Present Constitution ................... 2. Hong Kong's Constitution under the PRC ............ a. Government Structure ........................... b. Fundamental Rights ............................. B. Local Hong Kong Laws ................................ 1. Laws Previously in Force ............................ a. Specific Guarantees .............................. b. General Assurances .............................. 2. Laws Enacted by The Hong Kong SAR Legislature ... C. The Courts ............................................ D . Sum m ary .............................................. A. II. INTERNATIONAL LEGAL REGIME ............................ A. B. Rules of Public International Law ....................... Interpretation of the Joint Declaration: Scope of A ssignm ent ............................................ 1. General Rules of Treaty Interpretation ............... 2. Text of the Joint Declaration ........................ a. Treaties to which the PRC is a party .............. b. Treaties implemented in Hong Kong .............. i. Treaties affected .............................. ii. Succession Standard .......................... c. All other Treaties ................................ d. International Organizations ....................... e. Summ ary ....................................... 3. Express Provision for Continued Participation in Certain Treaties: GATT and Human Rights .......... 379 381 382 383 385 385 388 389 389 389 392 394 395 396 396 397 402 403 404 404 405 405 409 410 411 413 413 INTERNATIONAL TAX & BUSINESS LAWYER 378 [Vol. 5:377 4. Sum m ary ........................................... III. ENFORCEMENT OF THE JOINT DECLARATION ................ A. B. C. Binding Effect of The Joint Declaration .................. Enforceability of The Joint Declaration .................. 1. Acceptance of the International Court of Justice Jurisdiction ......................................... 2. Protection of Hong Kong Citizens ................... 3. Enforceability by Third-Party States .................. Non-legal Enforcement ................................. 416 416 417 418 418 419 420 421 CONCLUSION . .................................................... 422 TEXT OF THE JOINT DECLARATION OF THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON THE QUESTION OF HONG KONG .................................. 424 19871 LEGAL REGIME OF HONG KONG The Legal Regime of Hong Kong After 1997: An Examination of the Joint Declaration of the United Kingdom and the People's Republic of China by Nancy C. Jacksont INTRODUCTION On July 1, 1997, the British lease on Hong Kong will expire, and the Crown colony will become a part of the People's Republic of China [hereinafter China or the PRC]. This transfer of sovereignty will be an event of great historical significance, as a socialist developing country absorbs one of the world's most prosperous commercial centers. The outcome for Hong Kong cannot be predicted with certainty, given the unique array of political, socioeconomic, and legal issues posed. The foundations of post-1997 Hong Kong have been laid, however, in a recent British/Chinese treaty, the Joint Declaration of the Government of the People's Republic of China and the Government of the United Kingdom of Great Britain and Northern Ireland on the Question of Hong Kong (hereinafter the Joint Declaration).' This Article examines the Joint Declaration in an attempt to determine the nature of Hong Kong's legal regime after 1997. Britain's present sovereignty over Hong Kong is derived from three treaties concluded with China in the 19th century.2 At the end of the Opium War in 1842, a defeated China ceded Hong Kong Island in perpetuity to Great t Associate, Gibson, Dunn & Crutcher, Washington, D.C. The author wishes to join with the editors of ITBL in honoring Professor Stefan Riesenfeld by dedicating this article to him, with much gratitude for his years of guidance and inspiration. 1. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, Dec. 19, 1984, United Kingdom-People's Republic of China, 1984 Gr. Brit. T.S. No. 26 (Cmd. 9543) [hereinafter Joint Declaration]. The text of the Joint Declaration appears in an Appendix to this Article. 2. China has long maintained that all of these treaties are "unequal treaties" imposed by force, and that therefore they are invalid under international law. According to a Chinese legal scholar, an unequal treaty is one between two unequal bargaining States which is without legal validity. Wang Yao-t'ien, International Trade Treaties and Agreements 10 (1958), translated in 2 J. COHEN & H. CHIN, PEOPLE'S CHINA AND INTERNATIONAL LAW: A DOCUMENTARY STUDY 1119 (1974). For a discussion of the three treaties and Hong Kong's subsequent history, see P. WESLEY-SMITH, UNEQUAL TREATY, 1898-1977 (1980). 380 INTERNATIONAL TAX & BUSINESS LAWYER [Vol. 5:377 Britain in the Treaty of Nanking. 3 In 1860, following eighteen more years of conflict, China signed the Convention of Peking,4 ceding the Kowloon peninsula and Stonecutters Island to Great Britain, again in perpetuity. Finally, in the Convention of 1898, 5 China agreed to lease the New Territories (now 92% of the total colony) to Britain for a term of 99 years beginning on July 1, 1898. Technically, the 1997 expiration date is significant only with respect to the latest treaty. However, all three territories, collectively referred to as "Hong Kong" since 1898, function so interdependently as one economic unit that any partition would threaten the viability of the colony itself. Therefore, the transfer must include the entire territory.6 The Joint Declaration represents a culmination of two years of intense negotiations between the British and Chinese Governments over the future of Hong Kong. 7 Although the PRC will regain sovereignty over its former territories in 1997, it was willing to concede to Hong Kong a high degree of autonomy, at least in the short term. For its part, Great Britain sought to guarantee as little disruption to the colony as possible, hoping to preserve Hong Kong in its present form and ensure its continued prosperity and stability.' The resulting Joint Declaration embodies a political compromise whereby China will resume sovereignty over the Hong Kong territory in 1997 but will leave Hong Kong basically unchanged for 50 years following the transfer. In general outline, the Joint Declaration provides that a (...truncated)