Article by Kyle Tang,
On November 12, the United Kingdom announced that China breached the Sino-British Joint Declaration (the “Joint Declaration”) when it imposed new rules to disqualify elected lawmakers in Hong Kong. Under the new rules, elected legislators may be removed if they support Hong Kong's independence, refuse to acknowledge China's sovereignty, ask foreign forces to interfere in the city's affairs, or threaten national security in any other way. Within minutes of the bill’s passage, Beijing-appointed officials labeled four pro-democracy lawmakers as threats and implemented the new rule to remove them from the Legislative Council of Hong Kong. Almost all remaining pro-democracy legislators resigned in solidarity with those removed, resulting in a 41-2 Pro-Beijing majority.
China violates the legislative autonomy established in the Joint Declaration by imposing new rules to carve out the Legislative Council’s outspoken pro-democracy camp and sculpting a legislature packed with Pro-Beijing politicians. China’s conduct builds on the Hong Kong national security law's delegation of broad powers to Beijing authorities, which authorized excessively harsh penalties for dissent in response to the city’s massive pro-democracy movement.
As China’s influence over the city grows, so does the international backlash. United States National Security Advisor Robert O’Brien threatened additional sanctions on Chinese officials for “extinguishing Hong Kong’s freedom.” Nigel Adams, UK Minister for Asia, stated that the Foreign, Commonwealth and Development Office was considering possible “Magnitsky-style sanctions”–sanctions against human rights offenders–for China’s disqualification of Legislative Council members. This is the third time that China has breached the Joint Declaration since Britain transferred control of Hong Kong to China in 1997, so why has China never officially been held accountable for its breach?
The Sino-British Joint Declaration: Origins, Intent, and Enforceability
The Sino-British Joint Declaration, signed between the UK and China in 1984, laid the foundation for Hong Kong’s transition from British to Chinese sovereignty. The Joint Declaration adopted a “one country, two systems” legal framework that was intended to guarantee Hong Kong a “high degree of autonomy” and certain rights and freedoms, including executive, legislative, and judicial power, until at least 2047. Because many of its seats are elected directly by the public, the Legislative Council is one of the few remaining forums in which the people of Hong Kong have a say in determining their futures.
As Hong Kong’s promised bastion of autonomy crumbles, its people have little recourse as long as the enforceability of the Joint Declaration remains in question. This June, China declared the Joint Declaration a historical document that no longer had any practical significance. In response, the UK asserted that the Joint Declaration was still legally binding. The conflicting statements by the Chinese and British Foreign Ministries provide little in the way of resolution, but does the United Nations (UN) have the power to assert the enforceability of an international treaty?
As a neutral intergovernmental organization, the UN provides baseline legal guidelines in the Charter of the United Nations (UN Charter) and judicial institutions like the International Court of Justice (ICJ) through which a nonbreaching party may find relief. Upon its ratification, the Joint Declaration was registered in the United Nations Treaty Series (UNTS), but article 102 of the UN Charter only establishes that parties to an unregistered treaty may not invoke that treaty before any organ of the UN, including the ICJ. Registration in the UNTS does not, however, guarantee UN intervention without a party to a treaty first raising a claim.
The Joint Declaration itself does not contain any devices compelling compliance by either party. It does not include mechanisms for UN supervision, meaning only Britain and China have the right to raise claims for contractual violations. But neither country has ever exercised its right to enforce the Joint Declaration’s terms. For example, then-governor of Hong Kong Chris Patten proposed the 1994 Hong Kong electoral reform to significantly broaden the electorate base in the 1994 and 1995 elections without consulting China. China viewed Patten’s actions as a violation of the Joint Declaration, but due to factors such as the desire for a smooth handover process, China refrained from bringing a case before an international court. Similarly, the UK’s economy is currently highly dependent on its trade relations with China; China was the UK’s fourth largest import partner in 2019. The risk of damaging these external present-day economic interests deter the UK from bringing a case of breach before an international judicial institution, such as the ICJ or the Permanent Court of Arbitration (PCA).
The International Court of Justice and Permanent Court of Arbitration: Avenues for Relief?
The ICJ may offer two methods of relief. First, the UK, as a co-signatory, may bring a case before the ICJ for adversarial hearings. If the ICJ accepts the case, all countries involved must agree to binding arbitration by an international court, to which China is unlikely to agree. Second, article 96 of the UN Charter states that the ICJ may give advisory opinions upon request by specific UN agencies, but ICJ advisory opinions are non binding with few exceptions, and China’s influence over member states in the UN General Assembly would diminish the impact of an advisory opinion.
Although the PCA accepts unilateral submission of disputes, it is not a UN organization and lacks legally binding power. In a previous dispute overseen by the PCA, China refused to participate in hearings and labelled the unfavorable verdict “a farce.” But while a PCA ruling against China is not legally binding, it may bolster nonjudicial actions by the UK, as well as by non-signatory countries.
For example, in response to the drafting and passage of the Hong Kong national security law, the US suspended technology exports to Hong Kong, and the UK offered immigration opportunities to over 2.6 million Hong Kong residents. But other European countries may understandably be less eager to make such bold moves. Sanctions against China have typically been ineffective, and the future interests of many European countries depend heavily on the Chinese market.
But the recent passage of a comprehensive European Parliament resolution suggests that more EU countries are taking a firmer stance against China’s unilateral actions in Hong Kong. The European Parliament passed a resolution which recommends that EU countries sitting on the UN Security Council convene an “Arria meeting.” This meeting would push the UN Secretary General to appoint a UN Special Envoy to address the situation in Hong Kong, as well as potentially file a case before the ICJ regarding China’s breach of the Sino-British Joint Declaration and International Covenant on Civil and Political Rights. While the resolution is a bold step, holding China to any degree of accountability ultimately depends on countries taking concrete action together.
Author
Kyle Tang (J.D. Candidate, Class of 2020) is a Contributor to Travaux. His interests include antitrust law, international arbitration, and privacy law. Kyle holds a B.A. in Economics from the University of California, Berkeley. Before law school, Kyle served as a legislative assistant with the Berkeley City Council.
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