10.04.2019

Bulletin of the Coalition for Peace and Ethics | Special Issue on the Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises

Bulletin of the Coalition for Peace and Ethics

Volume 14, n. 2 (October 2019)

Special Issue 

Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis)





Table of Contents


A. CPE-Treaty Project Working Group; Larry Catá Backer and Flora Sapio



B. Introduction



Flora Sapio, The Victims of the Drat Legally Binding Instrument. Pages 154-158

Larry Catá Backer, The Instrumentalism of the Instrument and the Taming of Transnationalism. Page 159-162

C. The Preamble

Flora Sapio, Preamble: Inputs Taken into Account and Rejected. Pages 165-168


Flora Sapio, Preamble; Reflections on Content. Pages 179-184 


D. Section 1 of the Draft Legally Binding Instrument (Definitions; Statement of Purpose; and Scope)

Article 1 (Definitions)

Flora Sapio, Changes from the Zero Draft in Article 1. Pages 187-190 


Larry Catá Backer, Textual Analysis of the Definitions in Article 1. Pages 199-208

Article 2 (Statement of Purpose)

Flora Sapio, Concept and Context in Article 2. Pages 209-210  

Larry Catá Backer, Textual Analysis of Article 2. Pages 211-216 

Article 3 (Scope)

Flora Sapio, Textual Analysis of Article 3. Pages 217-220 



E. Section 2 of the Draft Legally Binding Instrument (Victims; Prevention; Legal Liability; Jurisdiction;  Statute of Limitations; Choice of Law; Mutual Legal Assistance)

Article 4 (Rights of Victims)

Larry Catá Backer, Article 4: General Analysis of Framework and Structure. Pages 229-236 

Flora Sapio, Article 4: Conceptual Foundations and Granular Analysis. Pages 237-244


Article 5 (Prevention)


Flora Sapio, Article 5: From Text to Concept and Politics. Pages 261-264 

Articles 6-10

Larry Catá Backer, Article 6: A Conceptual Analysis of the Conundrums of Legal Liability. Pages 265-276 

Larry Catá Backer, Articles 7-9: The Substantive Consequences of Boilerplate, a Textual Analysis. Pages 277-284 

Larry Catá Backer, Article 10 (Mutual Legal Assistance): Smoke and Mirrors? Pages 285-290 


F. From Section 2 to Section 3 of the Draft Legally Binding Instrument (International Cooperation; Mutual Legal Assistance; Dispute Settlement; Implementation)

Flora Sapio, The Genesis of Articles 6 – 12. Pages 293-298 




G. From Commentary to Redrafting; Implications and Insights

CPE-Treaty Project Working Group (Larry Catá Backer and Flora Sapio), Going Forward and Looking Back; On the Focus and Utility of this Commentary. Pages 313-316 


8.31.2019

The G7 Declaration on the Situation in Hong Kong, and China's Response. Two Analyses.

As the protest in Hong Kong enters its 13th week, a public dialogue that runs parallel to the protest has been unfolding between and among state actors. The dialogue has been taking place on different occasions, the most notable one being the  2019 Summit of the Group of Seven (G7) As it has become customary, at the end of the Summit, the countries of the Group of Seven (Italy, France, the United States, Germany, Canada, Japan and the United Kingdom), released a Leaders' Declaration. The Declaration is a  “one-page document summarizing the main decisions made on global crises”, This 259-words document can be consulted at this URL. The interest and relevance of the document lie not in the effects it can directly produce on Hong Kong. 




Hong Kong Island, Kowloon and the New Territories were ceded by the Manchu Empire to Great Britain, or else leased rent-free between 1842 and 1898, for a period of 99 years. Originated by the Opium Wars and the ensuing signature of the unequal treaties, the issue about the sovereignty of Hong Kong came to a peaceful solution in 1984. In that year, an international treaty enshrining the consensus reached by the leadership of the People's Republic of China and of the United Kingdom of Great Britain and Northern Ireland was signed. Under the terms of that treaty, sovereignty over Hong Kong Island, Kowloon and the New Territories would return to the People's Republic of China in 1997. Hong Kong's economic system, legal system, and way of life would remain unchanged until 2047. The institution that would vigilate on the observance of the conditions set by the Joint Declaration was a liason organ composed by Chinese and British members, that by 2000 ceased to exist.





The G7 Leaders' Declaration on Hong Kong can be considered a political and rhetorical - and yet legitimate - move. The Declaration is worth discussing, because it can reveal several of the global dynamics that surround the Hong Kong protests. Members of the Coalition for Peace and Ethics have focussed on two distinct aspects the Joint Declaration evoke.

Larry Catà Backer considers the meaning of the Joint Declaration within the context of forms and modes of sovereignty that are rapidly changing, and that exist in the absence of an adequate theorization. Dense with references to the work of Hardt and Negri, his post shows how, beyond popular theorizations about "Empire", the new sovereignty regimes we are witnessing are composite regimes. Each regime of sovereignty is composed by internal (endogenous) and external (exogenous) parts. The relationship between these parts, and other regimes of sovereignty, is determined by the network of relations that occur between any one of the endogenous and exogenous components, summed to the relations between all of the existing regimes of sovereignty.





Flora Sapio notices how the Leaders' Declaration, and China's response to it, have catalyzed public attention around the principle of 'One Country, Two Systems'. The words 'One Country, Two Systems' used to be the preserve of PRC  domestic discourse, Western politicians and academics versed in the art of interpreting esoteric political formulas. Today, these words are known by the public of Western countries. In a sense, the principle of 'One Country, Two Systems' has been globalized. This principle exists not only in the Statute of the Chinese Communist Party and in the Sino-British Joint Declaration. It has been acknowledged by the Group of Seven, and by the European Union as well. The global diffusion of this principle in turn invites a reflection on the power of regimes of soft regulation. 


These, however, are only two of the possible readings of the meaning of the Joint Declaration and the G7 Statement. The CPE welcomes additional readings and opinions informed by academic impartiality and independence. 














The G7 Declaration on Hong Kong, and the Globalization of One Country Two Systems

From August 24 to 26, the leaders of Italy, France, the United States, Germany, Canada, Japan and the United Kingdom held the 2019 Summit of the Group of Seven (G7). On August 26, a Leaders’ Declaration was made public. The declaration is a “one-page document summarizing the main decisions made on global crises”. The document can be consulted at this URL


The Leaders’ Declaration is not a legally binding document. But, its political and rhetorical value cannot be denied. The document had a broad impact, outside of the narrower circles of national and global governing elites. If anything, the Declarations' mention of the situation in Hong Kong provoked an immediate response from China.


G8 Summit 2001 - Genoa - Italy. Credit: Wikimedia Commons


The Leaders’ Declaration and China’s response captured global attention, for a sustained period of time. Public awareness about the situation in Hong Kong, and about Great Britain's role in the Opium Wars, and how the UK acquired and then returned sovereignty on the Island are contributing to shaping different opinions. The opinions that are taking shape about each one of the issues raised by press commentaries may be marginal to the formation of new modes of governance. At different times, different countries or cities may be the forge of those new modes of governance. Yet, popular opinion has to somehow be taken into account by the respective leadership of "pilot territories". Beyond political forms, and beyond divergences in ideology as well, popular consensus might be of some importance. 


LegCo Conference Room, 2019. Source: Wikimedia Commons


The weight of the G7 Declaration and China's response however goes beyond considerations about new modes or governance. Or, at least, the G7 Declaration and China's response a little-observed dimension of the emerging mode of governance. Everyone, inside and outside of the academia, is talking about the Leaders’ Declaration and China’s response. Who is instead aware of the latest legally binding documents enacted by the governments of China, Hong Kong, or any of the G7 countries? Who is aware of the full content of the Sino-British Joint Declaration? 

Those are legally binding documents, "hard law". The G7 Declaration on Hong Kong instead is not a legal document per se. It doesn't have the same legal authority as an international treaty. And yet discussion about the G7 Declaration and the China's response overshadowed an official treaty deposited with the UN, in compliance with the purposes and principles of the United Nations.

The G7 Leaders’ Statement provided  a summary of the consensus reached by the heads of state and government about the situation in Hong Kong:

The G7 reaffirms the existence and importance of the Sino-British Joint Declaration of 1984 on Hong Kong and calls for violence to be avoided.

The G7 expressed the wish that violence be avoided. That is something any reasonable person would want. In the first part of the statement, the Group of Seven merely said that the 1984 Sino-British Joint Declaration exists and it is important to them. The first part of the sentence says that:

The G7 reaffirms the existence and importance of the Sino-British Joint Declaration of 1984

Existence is the fact that an object has its own place in the real world. That the Joint Declaration is as a part of objective, material reality, regadless of any judgment about the effects this document produces. Importance is the fact that something is valuable or significant to someone. So this statement can be paraphrased as follows:

The Group of Seven once more say in public, and with emphasis, that the 1984 Sino-British Joint Declaration is a document that exists in the real world, and that this document is valuable and significant to the Group of Seven.

The G7 did not refer to any specific part or clause in the Sino-British Joint Declaration, or in its Annexes. That document does not bind several of the states who voiced their support for it. The contracting parties to the Sino-British Joint Declaration are only the United Kingdom of Great Britain and Northern Ireland, and the People’s Republic of China.

But, the Joint Declaration enshrines a principle — One Country, Two Systems — with a reach beyond the narrower limits of international "hard law". For one, the European Union has acknowledged the principle of ‘one country, two systems’ independently of the agreements reached between the United Kingdom and China. The European Commission has on different occasions stated that it adheres to the ‘one China policy’ and supports the principle of ‘one country, two systems’.  According to the EU, ‘one country, two systems’ it is also a principle under which the relations between the EU and Hong Kong exist. Yet, the principle does not exist in the Treaty of the European Union, as one of the principles of the common foreign policy. However, several members of the EU have adhered to the ‘one China policy’ independently, in their bilateral relations with China. Their committment to the ‘one China policy’ has been made through soft law documents. These soft law documents, in turn, are among the building blocks of the edifice of bilateral relations.

At the time of writing, the People’s Republic of China has terminated its participation in the Joint Declaration. China's response to the G7 Declaration came on August 27, through the spokesperson of the PRC Ministry of Foreign Affairs. That response is similar in tone and content to an earlier response issued in 2007 (see below).

If the G7 joint statement and the Ministry of Foreign Affairs are placed side by side, one immediately notices a clear difference in the administrative rank of the speakers. The Group of Seven is an intergovernmental organization, while the Ministry of Foreign Affairs is an organization subordinated to the State Council of the PRC. The ‘deploration’ and the ‘firm opposition’ to the content of the G7 joint statement did not directly originate from the State Council. They came through the Ministry of Foreign Affairs. 

The Ministry of Foreign Affairs has the responsibility to “(…) conduct information-related work about important diplomatic activities, organize public diplomacy activities (...)”, among others. But, the Ministry is not the only government institution with the power to comment on the statement of an intergovernmental organization. Comments on the Sino-British Joint Declaration could have been made by institutions ranking above the ministerial level. The State Council, however, remained silent on this issue. And so did other political institutions. The power to “decide on the ratification or abrogation of treaties and important agreements concluded with foreign states” belongs to the Standing Committee of the National People’s Congress — so does article 67 of the Constitution of the People’s Republic of China say. 

The Standing Committee of the National People’s Congress has not abrogated the Joint Declaration. The leadership of the Chinese Communist Party, in the meantime, has envisaged a role for Hong Kong as part of the Hong Kong-Guangdong-Macau Greater Bay Area. And of the Belt and Road Initiative. The ‘one country, two systems’ principle — a cornerstone of the Sino-British Joint Declaration — has not been denounced. It continues to exist as a principle enshrined in the Statute of the Chinese Communists Party, and in other documents. 

The idea of  'one country, two systems' may be accepted or rejected. It may be commented upon in an impartial way, it may be derided or criticized. Yet that idea has acquired its own existence outside and beyond the Sino-British Joint Declaration. Together with the 'one China policy', it is one of the principles shaping relations between the European Union, its member states, and the People’s Republic of China. But also between China and several of its members in the Belt and Road Initiative.

Some readers may dispute this point of view, and advance a different intepretation of the value of all the bilateral documents enshrining the ‘one China policy’ and 'one country two systems'. After all, none of those documents is binding. Given they are not binding, the ‘obligations’ they pose — if any — are entirely voluntary.

But, in retrospect, those voluntaristic committments have contributed to the global diffusion of the principle of ‘one country, two systems’. That principle was originally created to regulate a matter belonging to the internal affairs of China. But then, it was endorsed also by countries that China are not. The global diffusion of the ‘one China policy’ and ‘one country two systems’ took place slowly and gradually, over a 40-years time-span. Today, the ‘one China policy’ and ‘one country two systems’ are more or less generally accepted by European Union member states as principles that regulate their trade, investiment, political, and cultural relation with China. Today, the ‘one China principle’ and ‘one country two systems’ are broadly shared by the nation-states we live in. 

Such is the power of soft regulation, a form of regulation that plays an increasingly important role in the birth of new modes of governance. 

___________________________________

August 27, 2019 statement of the spokesperson of the PRC Ministry of Foreign Affairs (excerpt).

Q: The G7 joint statement "reaffirms the existence and the importance of the 1984 Sino-British agreement on Hong Kong and calls for avoiding violence". Do you have a comment on this report?

A: We deplore and firmly oppose such wanton comment in the G7 joint statement. As we've emphasized time and again, Hong Kong affairs are China's internal affairs. No foreign governments, organizations or individuals have any right to interfere.

The marches, demonstrations and violent activities have been going on for more than two months, which have severely undermined Hong Kong's rule of law, social order, economic well-being and international image. No one cherishes the SAR's prosperity and stability more than the Chinese people, including Hong Kong citizens. We will manage our own affairs properly. I would like to say this to the G7 members: no more meddling with ill intentions.

With respect to the Sino-British Joint Declaration, I would like to reiterate that its ultimate purpose and core content is to affirm China's recovering of Hong Kong and resumption of exercise of sovereignty over it. With the return of Hong Kong to the motherland, the Chinese government exercises jurisdiction over it in accordance with the Constitution and the Basic Law. Under international law and basic norms governing international relations, no country or organization has any right to use the declaration as a pretext to meddle in Hong Kong affairs.

2007 statement of the spokesperson of the Ministry of Foreign Affairs (excerpt)

Now Hong Kong has returned to the motherland’s embrace for 20 years, the Sino-British Joint Declaration, as a historical document, no longer has any practical significance, and it is not at all binding for the central government’s management over Hong Kong. The UK has no sovereignty, no power to rule and no power to supervise Hong Kong after the handover

The Sino-British Joint Declaration and the Realities of Hong Kong in the New Era of One Country-Two Systems in a New Era of Empire


The Sino-British Joint Declaration and the Realities of Hong Kong in the New Era of One Country-Two Systems in a New Era of Empire

Larry Catá Backer

Coalition for Peace & Ethics Working Group on Empire

30 Aug. 2019





As the situation in Hong Kong has become more sensitive, and even more dynamic, since the start of protests over an Extradition Bill that the Hong Kong Government put forward (and then withdrew) and that the Central Government (for its own reasons) desires whatever the costs, the international framework within which Hong Kong—once ceded to the U.K by the then legitimate government of China—was ceded again to China’s current legitimate government. At the center of this formal transference of sovereignty was the Sino-British Joint Declaration of 1984. It’s provisions served as the international framework within which China constructed its internal One Country Two Systems constitutional order. The Joint Declaration, then, had both external and internal dimensions. And it tied the two states that had been in a dynamic relation about the sovereignty (and control) of portions of the Pearl River Delta since the first third of the 19th century.

The Joint Declaration (reproduced below) consisted of a short main section of eight articles, and three substantive annexes. It’s formal international character as treaty was emphasized by the formalities of its construction and ultimately of its deposit into the authenticating vaults of the United Nations in New York. It promised many things, but the principal one perhaps was that all promises were to terminate half a century from its signing. In a sense, then, the Joint Declaration promised immediate sovereignty and eventual control. It set the tone for what was to become the One Country Two Systems Principle through the notion of a “high degree of autonomy” for Hong Kong (through 2047) and specified in some details the structures within which that autonomy would be maintained. It also embedded an international element with a mechanism for Sino-UK consultation the greatest utility of which ended with the transfer of 1997. As we are now discovering in the face of the clash between China’s New Era political-economic model (along with its Xi Jinping Theory of Socialist (Positive Values) Empire and popular demonstrations (with an audience of sympathetic international actors) grounded in the values of post 1945 international imperialism (the vanguard role of the international community under the core leadership of the victorious allies emerging after 1945) has both brought the ambiguities of the Joint Declaration to light and suggested its contradictions in the face of crisis.

But in many ways the new era of relations between China, the international community, international legal structures, and more specifically the United Kingdom has changed dramatically. China has sought to dump the Joint Declaration on the trash heap of history and to attempt to pry Hong Kong out from its status as an international protectorate. The United States (and less the UK) have sought to revivify its terms both in the service of classical international law and its post 1945 great principles, and at the same time further their respective national interests. This clash was notoriously made public during the 2017 commemoration of the ceding of sovereignty over Hong Kong from the UK to China.




The US noted its own reading of the meaning of the One Country Two Systems Principle as one grounded in international law with respect to which the international community was entitled to monitor and engage in its legitimate enforcement. The UK through Boris Johnson praised the then current state of affairs but noted as well the need to move One Country Two systems toward a greater degree of democratic and accountable government in Hong Kong measured by international standards which were built into Hong Kong’s constitutional model. In effect, both states, following traditional models of international law, viewed Hong Kong’s status as one that touched both on China’s sovereign prerogatives, and on China’s ceding of some of the prerogatives of control in return for a ceding to it of sovereignty over territory. In effect, what both the UK and US noted was the disconnection between sovereignty and control. In this case control ceded willingly in exchange for sovereignty.

After the publication of remarks by the UK and US governments on the anniversary of the ceding of Hong Kong, China responded in perhaps too honest a way: “The Chinese Foreign Ministry has declared the Sino-British Joint Declaration, that laid the groundwork for Hong Kong’s handover, a “historical document that no longer has any realistic meaning”, after Britain and the United States spoke of the binding effect of the 1984 treaty on China and the city.” (South China Morning Post, “Sino-British Joint Declaration on Hong Kong ‘no longer has any realistic meaning’, Chinese Foreign Ministry says” (““It also does not have any binding power on how the Chinese central government administers Hong Kong. Britain has no sovereignty, no governing power and no supervising power over Hong Kong. I hope relevant parties will take note of this reality.”).





The Foreign Ministry Statement was eventually “clarified.” Yet the essence of the statement appeared to survive except in the rarified world of diplomatic nuance.

“He [Lu Kang Foreign Ministry Spokesperson] said ‘it no longer has realistic meaning’. This is understandable when we look at the issue against the background that some country was trying to use the joint declaration for pointing fingers,” Xu said. “But we have never denied the fact that the joint declaration is a treaty.” While acknowledging the document registered with the United Nations was “not without [legally] binding effect”, he pointed out that its main text only mentioned Britain would “restore” Hong Kong to China, but included no provision for its rights and responsibilities after the handover. (“Beijing: Hong Kong Handover Treaty Still Binding,” China Digital Times ( quoting Xu Hong, director general of the Chinese foreign ministry’s treaty and law department)).

This was made clear at the time of the 2017 commemoration, when Xi Jinping also sought to redefine the product of the Joint Declaration from its international to its domestic character (South China Morning Post, “Full text of President Xi Jinping’s speech on ‘one country, two systems’ and how China rules Hong Kong”). His point was the same as that raised more bluntly by the Chinese foreign ministry but the message was the same—to the extent there was an international element within the relationship of the central authorities and Hong Kong it was to be understood as an internal matter of empire rather than as an external matter of international protectorate. He emphasized four critical points. First he inverted the relationship between the Joint Declaration’s structure of the relationship between Hong Kong and the central government. For him it was critical to understand that the Joint Declaration must be read in the light of the One Country Two Systems principle rather than the other way around. AS central element of this position was the development of a “correct” understanding of One Country two Systems as grounded in the relationship between the central government and its territories rather than the embedding of international expectation about the ordering of a dependency through the structures of international agreement. He thus sought to transform the international character of Hong Kong (through 2047 at least) into one of a domestic (imperial )order in which the central authorities reserved to themselves the power to organize and order the relations between itself and its territories. Second, that ordering was to be implemented in accordance with the constitutional documents of the central authorities rather than by reference to international instruments. Third, that for the central authorities the animating objective of the “two systems” portion of the principle was to ensure development (a modified application of the socialist modernization which anchored the Hong Kong variant within the Pearl River amalgam). And fourth that this two system model could only survive as long as a “harmonious and stable social environment” was maintained.






At the time the war of words was more rhetorical and abstract than anything else—provided for the amusement of the ruling castes of all stakeholders as they sought to play to internal and external audiences to further their own interests, all of which were complex. But the fuss has taken on a much more important character with the evolving situation in Hong Kong. The central authorities have sought to transforms the Joint Declaration’s international supervision into the allegation of black hand interference or colonialism with increasingly less persuasive allusions to the weakness of China by reference to its decrepit Manchu era government (about which we have written here, here, here). The UK (and more potently the US) have sought to emphasize the international protectorate obligations in the Joint Declaration as a means of ensuring that the governmental framework it crafted remains undisturbed (at least until 2047).

But let us consider the Joint Declaration on the broader context of Empire.

1. To some extent, the central authorities are now implementing Xi Jinping’s “New Era” vision of the One Country-Two Systems principle in relation to Hong Kong. What the situation in Hong Kong has done is to accelerate central authority planning for the eventual incorporation of Hong Kong within its political and economic model.

2. But formalities are still important. It will be for the authorities in Hong Kong to seek the aid of the central authorities. But Hong Kong authorities will also be expected under One Country Two Systems to petition the central authorities for help. That help need not come in the form of direct intervention by force, but will come from “support” for actions developed under the leadership of the central authorities (the arrests of leaders of the protests; the identification of foreign elements in Hong Kong government and culture, and the planning for the excision of both).

3. In this context, the Joint Declaration will retain its formal authority as a treaty. In that sense it will continue to be respected as an obligation of the central authorities in international law. But those obligations are increasingly viewed as fulfilled. And once fulfilled, the binding hold on the treaty itself fades into history. It is for that reason, in part, that the central authorities view continued international interest in Hong Kong as an illegal interference since whatever obligation it might have had under the Joint Declaration have passed. Western states, global civil society elements and others, of course, take the opposite view. And both tend to advance their views with increasing force.





4. The central authority’s position on the Joint Declaration suggest its view on the construction of a double imperialism theory. One is external and the other is internal. Externally, the construction of the post 1945 global order and its principles of international law bound up in the power of the community of states led by its leadership core (one can quibble over membership in the core but not into its existence) represents a new stage in imperial organization that sought (successfully to shed the debilitating elements of pre-1945 internationalism in military force, racism, ethno-centrism, and exploitation (at least overt)). But that global imperial system is thought to reflect the values and cultures of both liberal democracy and markets based capitalism. Internally, the construction of regional and ideological coherent sovereignty and control based relationships among sub-communities of states (and ethnicities) represents a new form of imperial organization that now seeks to development win-win structures of solidarity on the basis of mutual interest contextually based on power relations. That system, in turn, requires the acknowledgement of a core state (e.g., China or the U.S.) as a hub from out of which spokes can be developed that brings within the collective all states and other actors who converge around a singular vision of relations (in whole or in part) built on economics (Belt and Road Initiative; America First, etc.) or otherwise.

5. New Era imperial order has an internal and an external element. The periphery of the core (hub) of the New Era imperial system is built around autonomous regions each of which is accorded a distinct range of flexibility depending on context. These are ordered within the language of sovereignty and internal constitutionalism. Beyond the internal periphery of the core are the spoke relations with states with various degrees of dependence on the core. These are ordered within the language of extra-sovereign instruments—contract (Memoranda of understanding and other instruments; loan and economic exploitation agreements etc.); and ore formally international legal instruments. The extent of dependency and control depends on the relationship of the dependency to the core. Hong Kong falls well within the periphery of the core and is thus adjudged as an internal matter for the system of sovereignty and control that is the new form of empire.

6. Given this conceptual framework, it is unlikely that the central authorities will deviate from its development of a notion that all foreign interventions must be opposed. More importantly it will accelerate a progress of de-culturalization in which Hong Kong will lose its hybrid character and increasingly adopt the custom and practices of a peripheral territory of the core. This is particularly true with respect to the Twelve Core Socialist Values and the relationship of the economic and political model of this core-periphery to the core itself. In this context, the situation in Hong Kong serves as affirmation of the dangers of internationalization on the two levels of foreign interference and cultural development. It is in this context that all protest can be re-framed as the expression of the foreign, and all deviation increasingly as a bacillus that threatens the economic and political order of the core.

7. Bui, because the territory is still peripheral and a bridge to other spoke-hob empires, the way in which Hong Kong will be disciplined will be contextually distinct. This is not the Turkish periphery. Hong Kong’s history will likely produce the foundation for its further incorporation.

8. Lastly, it is worth remembering that 20147 is not too far off. And that the only thing may matter survive this long and drawn out transformation are the conceptual theories of empire which it has helped produce.



__________

 
The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China have reviewed with satisfaction the friendly relations existing between the two Governments and peoples in recent years and agreed that a proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further strengthening and development of the relations between the two countries on a new basis. To this end, they have, after talks between the delegations of the two Governments, agreed to declare as follows:
1. The Government of the People's Republic of China declares that to recover the Hong Kong area (including Hong Kong Island, Kowloon and the New Territories, hereinafter referred to as Hong Kong) is the common aspiration of the entire Chinese people, and that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997.
2. The Government of the United Kingdom declares that it will restore Hong Kong to the People's Republic of China with effect from 1 July 1997.
3. The Government of the People's Republic of China declares that the basic policies of the
People's Republic of China regarding Hong Kong are as follows:
  1. (1) Upholding national unity and territorial integrity and taking account of the history of Hong Kong and its realities, the People's Republic of China has decided to establish, in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, a Hong Kong Special Administrative Region upon resuming the exercise of sovereignty over Hong Kong.
(2) The Hong Kong Special Administrative Region will be directly under the authority of the Central People's Government of the People's Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government.
(3) The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.
(4) The Government of the Hong Kong Special Administrative Region will be composed of local inhabitants. The chief executive will be appointed by the Central People's Government on the basis of the results of elections or consultations to be held locally. Principal officials will be nominated by the chief executive of the Hong Kong Special Administrative Region for appointment by the Central People's Government. Chinese and foreign nationals previously working in the public and police services in the government departments of Hong Kong may remain in employment. British and other foreign nationals may also be employed to serve as advisers or hold certain public posts in government departments of the Hong Kong Special Administrative Region.
(5) The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law.
(6) The Hong Kong Special Administrative Region will retain the status of a free port and a separate customs territory.
(7) The Hong Kong Special Administrative Region will retain the status of an international financial centre, and its markets for foreign exchange, gold, securities and futures will continue. There will be free flow of capital. The Hong Kong dollar will continue to circulate and remain freely convertible.
(8) The Hong Kong Special Administrative Region will have independent finances. The Central People's Government will not levy taxes on the Hong Kong Special Administrative Region.
(9) The Hong Kong Special Administrative Region may establish mutually beneficial economic relations with the United Kingdom and other countries, whose economic interests in Hong Kong will be given due regard.
(10) Using the name of 'Hong Kong, China', the Hong Kong Special Administrative Region may on its own maintain and develop economic and cultural relations and conclude relevant agreements with states, regions and relevant international organisations.
The Government of the Hong Kong Special Administrative Region may on its own issue travel documents for entry into and exit from Hong Kong.
(11) The maintenance of public order in the Hong Kong Special Administrative Region will be the responsibility of the Government of the Hong Kong Special Administrative Region.
(12) The above-stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress of the People's Republic of China, and they will remain unchanged for 50 years.
4. The Government of the United Kingdom and the Government of the People's Republic of China declare that, during the transitional period between the date of the entry into force of this Joint Declaration and 30 June 1997, the Government of the United Kingdom will be responsible for the administration of Hong Kong with the object of maintaining and preserving its economic prosperity and social stability; and that the Government of the People's Republic of China will give its cooperation in this connection.
5. The Government of the United Kingdom and the Government of the People's Republic of China declare that, in order to ensure a smooth transfer of government in 1997, and with a view to the effective implementation of this Joint Declaration, a Sino-British Joint Liaison Group will be set up when this Joint Declaration enters into force; and that it will be established and will function in accordance with the provisions of Annex II to this Joint Declaration.
6. The Government of the United Kingdom and the Government of the People's Republic of China declare that land leases in Hong Kong and other related matters will be dealt with in accordance with the provisions of Annex III to this Joint Declaration.
7. The Government of the United Kingdom and the Government of the People's Republic of China agree to implement the preceding declarations and the Annexes to this Joint Declaration.
8. This Joint Declaration is subject to ratification and shall enter into force on the date of the exchange of instruments of ratification, which shall take place in Beijing before 30 June 1985. This Joint Declaration and its Annexes shall be equally binding.
Done in duplicate at Beijing on 19 December 1984 in the English and Chinese languages, both texts being equally authentic.
 












(Signed)
For the Government of the United Kingdom of Great Britain and Northern Ireland

(Signed)
For the Government of the People's Republic of China




__________


Elaboration by the government of the People's Republic of China of its basic policies regarding Hong Kong
 
The Government of the People's Republic of China elaborates the basic policies of the People's Republic of China regarding Hong Kong as set out in paragraph 3 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 as follows:



 
I. CONSTITUTION
Establishment of the Hong Kong S.A.R.
The Basic Law
The Constitution of the People's Republic of China stipulates in Article 31 "that the state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by laws enacted by the National People's Congress in the light of the specific conditions." In accordance with this Article, the People's Republic of China shall, upon the resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, establish the Hong Kong Special Administrative Region of the People's Republic of China. The National People's Congress of the People's Republic of China shall enact and promulgate a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter referred to as the Basic Law) in accordance with the Constitution of the People's Republic of China, stipulating that after the establishment of the Hong Kong Special Administrative Region the socialist system and socialist policies shall not be practised in the Hong Kong Special Administrative Region and that Hong Kong's previous capitalist system and life-style shall remain unchanged for 50 years.
The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication. The Central People's Government shall authorise the Hong Kong Special Administrative Region to conduct on its own those external affairs specified in Section XI of this Annex.
Chief Executive. Principal Officials. The Legislature
The government and legislature of the Hong Kong Special Administrative Region shall be composed of local inhabitants. The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government. Principal officials (equivalent to Secretaries) shall be nominated by the chief executive of the Hong Kong Special Administrative Region and appointed by the Central People's Government. The legislature of the Hong Kong Special Administrative Region shall be constituted by elections. The executive authorities shall abide by the law and shall be accountable to the legislature.
Language
In addition to Chinese, English may also be used in organs of government and in the courts in the Hong Kong Special Administrative Region.
Regional flag and emblem
Apart from displaying the national flag and national emblem of the People's Republic of China, the Hong Kong Special Administrative Region may use a regional flag and emblem of its own.
Top
II. LEGAL SYSTEM
Laws previously in force
After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature.
Legislative power
The legislative power of the Hong Kong Special Administrative Region shall be vested in the legislature of the Hong Kong Special Administrative Region. The legislature may on its own authority enact laws in accordance with the provisions of the Basic Law and legal procedures, and report them to the Standing Committee of the National People's Congress for the record. Laws enacted by the legislature which are in accordance with the Basic Law and legal procedures shall be regarded as valid.
Laws of the SAR
The laws of the Hong Kong Special Administrative Region shall be the Basic Law, and the laws previously in force in Hong Kong and laws enacted by the Hong Kong Special Administrative Region legislature as above.
Top
III. JUDICIAL SYSTEM
Previous judicial system
After the establishment of the Hong Kong Special Administrative Region, the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the Hong Kong Special Administrative Region of the power of final adjudication.
Judicial power; Precedents
Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region. The courts shall exercise judicial power independently and free from any interference. Members of the judiciary shall be immune from legal action in respect of their judicial functions. The courts shall decide cases in accordance with the laws of the Hong Kong Special Administrative Region and may refer to precedents in other common law jurisdictions.
Appointment and removal of judges
Judges of the Hong Kong Special Administrative Region courts shall be appointed by the chief executive of the Hong Kong Special Administrative Region acting in accordance with the recommendation of an independent commission composed of local judges, persons from the legal profession and other eminent persons. Judges shall be chosen by reference to their judicial qualities and may be recruited from other common law jurisdictions. A judge may only be removed for inability to discharge the functions of his office, or for misbehaviour, by the chief executive of the Hong Kong Special Administrative Region acting in accordance with the recommendation of a tribunal appointed by the chief judge of the court of final appeal, consisting of not fewer than three local judges. Additionally, the appointment or removal of principal judges (i.e. those of the highest rank) shall be made by the chief executive with the endorsement of the Hong Kong Special Administrative Region legislature and reported to the Standing Committee of the National People's Congress for the record. The system of appointment and removal of judicial officers other than judges shall be maintained.
Power of final judgment
The power of final judgment of the Hong Kong Special Administrative Region shall be vested in the court of final appeal in the Hong Kong Special Administrative Region, which may as required invite judges from other common law jurisdictions to sit on the court of final appeal.
Prosecutions
A prosecuting authority of the Hong Kong Special Administrative Region shall control criminal prosecutions free from any interference.
Legal practitioners
On the basis of the system previously operating in Hong Kong, the Hong Kong Special Administrative Region Government shall on its own make provision for local lawyers and lawyers from outside the Hong Kong Special Administrative Region to work and practise in the Hong Kong Special Administrative Region.
Reciprocal juridical assistance
The Central People's Government shall assist or authorise the Hong Kong Special Administrative Region Government to make appropriate arrangements for reciprocal juridical assistance with foreign states.
Top
IV. PUBLIC SERVICE
Public servants and members of judiciary previously serving in H.K.
After the establishment of the Hong Kong Special Administrative Region, public servants previously serving in Hong Kong in all government departments, including the police department, and members of the judiciary may all remain in employment and continue their service with pay, allowances, benefits and conditions of service no less favourable than before. The Hong Kong Special Administrative Region Government shall pay to such persons who retire or complete their contracts, as well as to those who have retired before 1 July 1997, or to their dependants, all pensions, gratuities, allowances and benefits due to them on terms no less favourable than before, and irrespective of their nationality or place of residence.
Foreign nationals in public service
The Hong Kong Special Administrative Region Government may employ British and other foreign nationals previously serving in the public service in Hong Kong, and may recruit British and other foreign nationals holding permanent identity cards of the Hong Kong Special Administrative Region to serve as public servants at all levels, except as heads of major government departments (corresponding to branches or departments at Secretary level) including the police department, and as deputy heads of some of those departments. The Hong Kong Special Administrative Region Government may also employ British and other foreign nationals as advisers to government departments and, when there is a need, may recruit qualified candidates from outside the Hong Kong Special Administrative Region to professional and technical posts in government departments. The above shall be employed only in their individual capacities and, like other public servants, shall be responsible to the Hong Kong Special Administrative Region Government.
Appointment and promotion of public servants
The appointment and promotion of public servants shall be on the basis of qualifications, experience and ability. Hong Kong's previous system of recruitment, employment, assessment, discipline, training and management for the public service (including special bodies for appointment, pay and conditions of service) shall, save for any provisions providing privileged treatment for foreign nationals, be maintained.
Top
V. FINANCE
Budget
The Hong Kong Special Administrative Region shall deal on its own with financial matters, including disposing of its financial resources and drawing up its budgets and its final accounts. The Hong Kong Special Administrative Region shall report its budgets and final accounts to the Central People's Government for the record.
Taxation and public expenditure
The Central People's Government shall not levy taxes on the Hong Kong Special Administrative Region. The Hong Kong Special Administrative Region shall use its financial revenues exclusively for its own purposes and they shall not be handed over to the Central People's Government. The systems by which taxation and public expenditure must be approved by the legislature, and by which there is accountability to the legislature for all public expenditure, and the system for auditing public accounts shall be maintained.
Top
VI. ECONOMIC SYSTEM
Economic and trade system.
Ownership of property
The Hong Kong Special Administrative Region shall maintain the capitalist economic and trade systems previously practised in Hong Kong. The Hong Kong Special Administrative Region Government shall decide its economic and trade policies on its own. Rights concerning the ownership of property, including those relating to acquisition, use, disposal, inheritance and compensation for lawful deprivation (corresponding to the real value of the property concerned, freely convertible and paid without undue delay) shall continue to be protected by law.
Free port and free trade policy
The Hong Kong Special Administrative Region shall retain the status of a free port and continue a free trade policy, including the free movement of goods and capital. The Hong Kong Special Administrative Region may on its own maintain and develop economic and trade relations with all states and regions.
Customs territory.
GATT.
The Hong Kong Special Administrative Region shall be a separate customs territory. It may participate in relevant international organisations and international trade agreements (including preferential trade arrangements), such as the General Agreement on Tariffs and Trade and arrangements regarding international trade in textiles. Export quotas, tariff preferences and other similar arrangements obtained by the Hong Kong Special Administrative Region shall be enjoyed exclusively by the Hong Kong Special Administrative Region. The Hong Kong Special Administrative Region shall have authority to issue its own certificates of origin for products manufactured locally, in accordance with prevailing rules of origin.
Trade missions
The Hong Kong Special Administrative Region may, as necessary, establish official and semi-official economic and trade missions in foreign countries, reporting the establishment of such missions to the Central People's Government for the record.
Top
VII. MONETARY SYSTEM
Previous monetary and financial systems
The Hong Kong Special Administrative Region shall retain the status of an international financial centre. The monetary and financial systems previously practised in Hong Kong, including the systems of regulation and supervision of deposit taking institutions and financial markets, shall be maintained.
Monetary and financial policies
The Hong Kong Special Administrative Region Government may decide its monetary and financial policies on its own. It shall safeguard the free operation of financial business and the free flow of capital within, into and out of the Hong Kong Special Administrative Region. No exchange control policy shall be applied in the Hong Kong Special Administrative Region. Markets for foreign exchange, gold, securities and futures shall continue.
Hong Kong dollar
The Hong Kong dollar, as the local legal tender, shall continue to circulate and remain freely convertible. The authority to issue Hong Kong currency shall be vested in the Hong Kong Special Administrative Region Government. The Hong Kong Special Administrative Region Government may authorise designated banks to issue or continue to issue Hong Kong currency under statutory authority, after satisfying itself that any issue of currency will be soundly based and that the arrangements for such issue are consistent with the object of maintaining the stability of the currency. Hong Kong currency bearing references inappropriate to the status of Hong Kong as a Special Administrative Region of the People's Republic of China shall be progressively replaced and withdrawn from circulation.
Exchange Fund
The Exchange Fund shall be managed and controlled by the Hong Kong Special Administrative Region Government, primarily for regulating the exchange value of the Hong Kong dollar.
Top
VIII. SHIPPING
Previous systems of shipping management and regulation
The Hong Kong Special Administrative Region shall maintain Hong Kong's previous systems of shipping management and shipping regulation, including the system for regulating conditions of seamen. The specific functions and responsibilities of the Hong Kong Special Administrative Region Government in the field of shipping shall be defined by the Hong Kong Special Administrative Region Government on its own. Private shipping businesses and shipping-related businesses and private container terminals in Hong Kong may continue to operate freely.
Shipping registers and issue of certificates
The Hong Kong Special Administrative Region shall be authorised by the Central People's Government to continue to maintain a shipping register and issue related certificates under its own legislation in the name of 'Hong Kong, China'.
Access to HKSAR ports
With the exception of foreign warships, access for which requires the permission of the Central People's Government, ships shall enjoy access to the ports of the Hong Kong Special Administrative Region in accordance with the laws of the Hong Kong Special Administrative Region.


ANNEX I
 

IX. CIVIL AVIATION

Previous system of civil aviation management

The Hong Kong Special Administrative Region shall maintain the status of Hong Kong as a centre of international and regional aviation. Airlines incorporated and having their principal place of business in Hong Kong and civil aviation related businesses may continue to operate. The Hong Kong Special Administrative Region shall continue the previous system of civil aviation management in Hong Kong, and keep its own aircraft register in accordance with provisions laid down by the Central People's Government concerning nationality marks and registration marks of aircraft. The Hong Kong Special Administrative Region shall be responsible on its own for matters of routine business and technical management of civil aviation, including the management of airports, the provision of air traffic services within the flight information region of the Hong Kong Special Administrative Region, and the discharge of other responsibilities allocated under the regional air navigation procedures of the International Civil Aviation Organisation.

Air services

The Central People's Government shall, in consultation with the Hong Kong Special Administrative Region Government, make arrangements providing for air services between the Hong Kong Special Administrative Region and other parts of the People's Republic of China for airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region and other airlines of the People's Republic of China. All Air Service Agreements providing for air services between other parts of the People's Republic of China and other states and regions with stops at the Hong Kong Special Administrative Region and air services between the Hong Kong Special Administrative Region and other states and regions with stops at other parts of the People's Republic of China shall be concluded by the Central People's Government. For this purpose, the Central People's Government shall take account of the special conditions and economic interests of the Hong Kong Special Administrative Region and consult the Hong Kong Special Administrative Region Government. Representatives of the Hong Kong Special Administrative Region Government may participate as members of delegations of the Government of the People's Republic of China in air service consultations with foreign governments concerning arrangements for such services.

Air Service Agreements

Acting under specific authorisations from the Central People's Government, the Hong Kong Special Administrative Region Government may:
  • renew or amend Air Service Agreements and arrangements previously in force; in principle, all such Agreements and arrangements may be renewed or amended with the rights contained in such previous Agreements and arrangements being as far as possible maintained;
  • negotiate and conclude new Air Service Agreements providing routes for airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region and rights for overflights and technical stops; and
  • negotiate and conclude provisional arrangements where no Air Service Agreement with a foreign state or other region is in force.
All scheduled air services to, from or through the Hong Kong Special Administrative Region which do not operate to, from or through the mainland of China shall be regulated by Air Service Agreements or provisional arrangements referred to in this paragraph.
The Central People's Government shall give the Hong Kong Special Administrative Region Government the authority to:
  • negotiate and conclude with other authorities all arrangements concerning the implementation of the above Air Service Agreements and provisional arrangements;
  • issue licences to airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region;
  • designate such airlines under the above Air Service Agreements and provisional arrangements; and
  • issue permits to foreign airlines for services other than those to, from or through the mainland of China.

Top

X. EDUCATION

The Hong Kong Special Administrative Region shall maintain the educational system previously practised in Hong Kong. The Hong Kong Special Administrative Region Government shall on its own decide policies in the fields of culture, education, science and technology, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system, the system of academic awards and the recognition of educational and technological qualifications. Institutions of all kinds, including those run by religious and community organisations, may retain their autonomy. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region. Students shall enjoy freedom of choice of education and freedom to pursue their education outside the Hong Kong Special Administrative Region.

Top

XI. FOREIGN AFFAIRS

General

Subject to the principle that foreign affairs are the responsibility of the Central People's Government, representatives of the Hong Kong Special Administrative Region Government may participate, as members of delegations of the Government of the People's Republic of China, in negotiations at the diplomatic level directly affecting the Hong Kong Special Administrative Region conducted by the Central People's Government. The Hong Kong Special Administrative Region may on its own, using the name 'Hong Kong, China', maintain and develop relations and conclude and implement agreements with states, regions and relevant international organisations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, touristic, cultural and sporting fields. Representatives of the Hong Kong Special Administrative Region Government may participate, as members of delegations of the Government of the People's Republic of China, in international organisations or conferences in appropriate fields limited to states and affecting the Hong Kong Special Administrative Region, or may attend in such other capacity as may be permitted by the Central People's Government and the organisation or conference concerned, and may express their views in the name of 'Hong Kong, China'. The Hong Kong Special Administrative Region may, using the name 'Hong Kong, China', participate in international organisations and conferences not limited to states.

International agreements

The application to the Hong Kong Special Administrative Region of international agreements to which the People's Republic of China is or becomes a party shall be decided by the Central People's Government, in accordance with the circumstances and needs of the Hong Kong Special Administrative Region, and after seeking the views of the Hong Kong Special Administrative Region Government. International agreements to which the People's Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region. The Central People's Government shall, as necessary, authorise or assist the Hong Kong Special Administrative Region Government to make appropriate arrangements for the application to the Hong Kong Special Administrative Region of other relevant international agreements. The Central People's Government shall take the necessary steps to ensure that the Hong Kong Special Administrative Region shall continue to retain its status in an appropriate capacity in those international organisations of which the People's Republic of China is a member and in which Hong Kong participates in one capacity or another. The Central People's Government shall, where necessary, facilitate the continued participation of the Hong Kong Special Administrative Region in an appropriate capacity in those international organisations in which Hong Kong is a participant in one capacity or another, but of which the People's Republic of China is not a member.

Consular and other missions

Foreign consular and other official or semi-official missions may be established in the Hong Kong Special Administrative Region with the approval of the Central People's Government. Consular and other official missions established in Hong Kong by states which have established formal diplomatic relations with the People's Republic of China may be maintained. According to the circumstances of each case, consular and other official missions of states having no formal diplomatic relations with the People's Republic of China may either be maintained or changed to semi-official missions. States not recognised by the People's Republic of China can only establish non-governmental institutions.
The United Kingdom may establish a Consulate-General in the Hong Kong Special Administrative Region.

Top

XII. DEFENCE

The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government. Military forces sent by the Central People's Government to be stationed in the Hong Kong Special Administrative Region for the purpose of defence shall not interfere in the internal affairs of the Hong Kong Special Administrative Region. Expenditure for these military forces shall be borne by the Central People's Government.
ANNEX I
Elaboration by the government of the People's Republic of China of its basic policies regarding Hong Kong
 

XIII. BASIC RIGHTS AND FREEDOMS

General

The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. The Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.

Legal advice and judicial remedies

Every person shall have the right to confidential legal advice, access to the courts, representation in the courts by lawyers of his choice, and to obtain judicial remedies. Every person shall have the right to challenge the actions of the executive in the courts.

Religion

Religious organisations and believers may maintain their relations with religious organisations and believers elsewhere, and schools, hospitals and welfare institutions run by religious organisations may be continued. The relationship between religious organisations in the Hong Kong Special Administrative Region and those in other parts of the People's Republic of China shall be based on the principles of non-subordination, non-interference and mutual respect.

International Covenants

The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.

Top

XIV. RIGHT OF ABODE, TRAVEL, IMMIGRATION

Right of abode

The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:
  • all Chinese nationals who where born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;
  • all other persons who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more and who have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region, and persons under 21 years of age who were born of such persons in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
  • any other persons who had the right of abode only in Hong Kong before the establishment of the Hong Kong Special Administrative Region.

Passports etc

The Central People's Government shall authorise the Hong Kong Special Administrative Region Government to issue, in accordance with the law, passports of the Hong Kong Special Administrative Region of the People's Republic of China to all Chinese nationals who hold permanent identity cards of the Hong Kong Special Administrative Region, and travel documents of the Hong Kong Special Administrative Region of the People's Republic of China to all other persons lawfully residing in the Hong Kong Special Administrative Region. The above passports and documents shall be valid for all states and regions and shall record the holder's right to return to the Hong Kong Special Administrative Region.

Use of travel documents

For the purpose of travelling to and from the Hong Kong Special Administrative Region, residents of the Hong Kong Special Administrative Region may use travel documents issued by the Hong Kong Special Administrative Region Government, or by other competent authorities of the People's Republic of China, or of other states. Holders of permanent identity cards of the Hong Kong Special Administrative Region may have this fact stated in their travel documents as evidence that the holders have the right of abode in the Hong Kong Special Administrative Region.
Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice.

Immigration controls

The Hong Kong Special Administrative Region Government may apply immigration controls on entry, stay in and departure from the Hong Kong Special Administrative Region by persons from foreign states and regions.

Freedom to leave SAR

Unless restrained by law, holders of valid travel documents shall be free to leave the Hong Kong Special Administrative Region without special authorisation.

Visa abolition agreements

The Central People's Government shall assist or authorise the Hong Kong Special Administrative Region Government to conclude visa abolition agreements with states or regions.




__________

ANNEX II

1. In furtherance of their common aim and in order to ensure a smooth transfer of government in 1997, the Government of the United Kingdom and the Government of the People's Republic of China have agreed to continue their discussions in a friendly spirit and to develop the cooperative relationship which already exists between the two Governments over Hong Kong with a view to the effective implementation of the Joint Declaration.
2. In order to meet the requirements for liaison, consultation and the exchange of information, the two Governments have agreed to set up a Joint Liaison Group.
3. The functions of the Joint Liaison Group shall be:
  1. a) to conduct consultations on the implementation of the Joint Declaration;
b) to discuss matters relating to the smooth transfer of government in 1997;
c) to exchange information and conduct consultations on such subjects as may be agreed by the two sides.
Matters on which there is disagreement in the Joint Liaison Group shall be referred to the two Governments for solution through consultations.
4. Matters for consideration during the first half of the period between the establishment of the Joint Liaison Group and 1 July 1997 shall include:
  1. a) action to be taken by the two Governments to enable the Hong Kong Special Administrative Region to maintain its economic relations as a separate customs territory, and in particular to ensure the maintenance of Hong Kong's participation in the General Agreement on Tariffs and Trade, the Multifibre Arrangement and other international arrangements; and
b) action to be taken by the two Governments to ensure the continued application of international rights and obligations affecting Hong Kong.
5. The two Governments have agreed that in the second half of the period between the establishment of the Joint Liaison Group and 1 July 1997 there will be need for closer cooperation, which will therefore be intensified during that period. Matters for consideration during this second period shall include:
  1. a) procedures to be adopted for the smooth transition in 1997;
b) action to assist the Hong Kong Special Administrative Region to maintain and develop economic and cultural relations and conclude agreements on these matters with states, regions and relevant international organisations.
6. The Joint Liaison Group shall be an organ for liaison and not an organ of power. It shall play no part in the administration of Hong Kong or the Hong Kong Special Administrative Region. Nor shall it have any supervisory role over that administration. The members and supporting staff of the Joint Liaison Group shall only conduct activities within the scope of the functions of the Joint Liaison Group.
7. Each side shall designate a senior representative who shall be of Ambassadorial rank, and four other members of the group. Each side may send up to 20 supporting staff.
8. The Joint Liaison Group shall be established on the entry into force of the Joint Declaration. From 1 July 1988 the Joint Liaison Group shall have its principal base in Hong Kong. The Joint Liaison Group shall continue its work until 1 January 2000.
9. The Joint Liaison Group shall meet in Beijing, London and Hong Kong. It shall meet at least once in each of the three locations in each year. The venue for each meeting shall be agreed between the two sides.
10. Members of the Joint Liaison Group shall enjoy diplomatic privileges and immunities as appropriate when in the three locations. Proceedings of the Joint Liaison Group shall remain confidential unless otherwise agreed between the two sides.
11. The Joint Liaison Group may by agreement between the two sides decide to set up specialist sub-groups to deal with particular subjects requiring expert assistance.
12. Meetings of the Joint Liaison Group and sub-groups may be attended by experts other than the members of the Joint Liaison Group. Each side shall determine the composition of its delegation to particular meetings of the Joint Liaison Group or sub-group in accordance with the subjects to be discussed and the venue chosen.
13. The working procedures of the Joint Liaison Group shall be discussed and decided upon by the two sides within the guidelines laid down in this Annex.


__________

ANNEX III

The Government of the United Kingdom and the Government of the People's Republic of China have agreed that, with effect from the entry into force of the Joint Declaration, land leases in Hong Kong and other related matters shall be dealt with in accordance with the following provisions:
1. All leases of land granted or decided upon before the entry into force of the Joint Declaration and those granted thereafter in accordance with paragraph 2 or 3 of this Annex, and which extend beyond 30 June 1997, and all rights in relation to such leases shall continue to be recognised and protected under the law of the Hong Kong Special Administrative Region.
2. All leases of land granted by the British Hong Kong Government not containing a right of renewal that expire before 30 June 1997, except short term tenancies and leases for special purposes, may be extended if the lessee so wishes for a period expiring not later than 30 June 2047 without payment of an additional premium. An annual rent shall be charged from the date of extension equivalent to 3 per cent of the rateable value of the property at that date, adjusted in step with any changes in the rateable value thereafter. In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, the property is granted to, a person descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the rent shall remain unchanged so long as the property is held by that person or by one of his lawful successors in the male line. Where leases of land not having a right of renewal expire after 30 June 1997, they shall be dealt with in accordance with the relevant land laws and policies of the Hong Kong Special Administrative Region.
3. From the entry into force of the Joint Declaration until 30 June 1997, new leases of land may be granted by the British Hong Kong Government for terms expiring not later than 30 June 2047. Such leases shall be granted at a premium and nominal rental until 30 June 1997, after which date they shall not require payment of an additional premium but an annual rent equivalent to 3 per cent of the rateable value of the property at that date, adjusted in step with changes in the rateable value thereafter, shall be charged.
4. The total amount of new land to be granted under paragraph 3 of this Annex shall be limited to 50 hectares a year (excluding land to be granted to the Hong Kong Housing Authority for public rental housing) from the entry into force of the Joint Declaration until 30 June 1997.
5. Modifications of the conditions specified in leases granted by the British Hong Kong Government may continue to be granted before 1 July 1997 at a premium equivalent to the difference between the value of the land under the previous conditions and its value under the modified conditions.
6. From the entry into force of the Joint Declaration until 30 June 1997, premium income obtained by the British Hong Kong Government from land transactions shall, after deduction of the average cost of land production, be shared equally between the British Hong Kong Government and the future Hong Kong Special Administrative Region Government. All the income obtained by the British Hong Kong Government, including the amount of the above-mentioned deduction, shall be put into the Capital Works Reserve Fund for the financing of land development and public works in Hong Kong. The Hong Kong Special Administrative Region Government's share of the premium income shall be deposited in banks incorporated in Hong Kong and shall not be drawn on except for the financing of land development and public works in Hong Kong in accordance with the provisions of paragraph 7(d) of this Annex.
7. A Land Commission shall be established in Hong Kong immediately upon the entry into force of the Joint Declaration. The Land Commission shall be composed of an equal number of officials designated respectively by the Government of the United Kingdom and the Government of the People's Republic of China together with necessary supporting staff. The officials of the two sides shall be responsible to their respective governments. The Land Commission shall be dissolved on 30 June 1997.
The terms of reference of the Land Commission shall be:
  1. a) to conduct consultations on the implementation of this Annex;
b) to monitor observance of the limit specified in paragraph 4 of this Annex, the amount of land granted to the Hong Kong Housing Authority for public rental housing, and the division and use of premium income referred to in paragraph 6 of this Annex;
c) to consider and decide on proposals from the British Hong Kong Government for increasing the limit referred to in paragraph 4 of this Annex;
d) to examine proposals for drawing on the Hong Kong Special Administrative Region Government's share of premium income referred to in paragraph 6 of this Annex and to make recommendations to the Chinese side for decision.
Matters on which there is disagreement in the Land Commission shall be referred to the Government of the United Kingdom and the Government of the People's Republic of China for decision.
8. Specific details regarding the establishment of the Land Commission shall be finalised separately by the two sides through consultations.

__________



In connection with 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 to be signed this day, the Government of the United Kingdom declares that, subject to the completion of the necessary amendments to the relevant United Kingdom legislation:
  1. a) All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.
b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or before 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a).
c) United Kingdom consular officials in the Hong Kong Special Administrative Region and elsewhere may renew and replace passports of persons mentioned in sub-paragraph (a) and may also issue them to persons, born before 1 July 1997 of such persons, who had previously been included in the passport of their parent.
d) Those who have obtained or been included in passports issued by the Government of the United Kingdom under sub-paragraphs (a) and (c) will be entitled to receive, upon request, British consular services and protection when in third countries.
Beijing, 19 December 1984.
 
Chinese Memorandum
 
The Government of the People's Republic of China has received the memorandum from the Government of the United Kingdom of Great Britain and Northern Ireland dated 19 December 1984.
Under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether they are holders of the 'British Dependent Territories Citizens' Passport' or not, are Chinese nationals.
Taking account of the historical background of Hong Kong and its realities, the competent authorities of the Government of the People's Republic of China will, with effect from 1 July 1997, permit Chinese nationals in Hong Kong who were previously called 'British Dependent Territories Citizens' to use travel documents issued by the Government of the United Kingdom for the purpose of travelling to other states and regions.
The above Chinese nationals will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the above-mentioned British travel documents.
Beijing, 19 December 1984.


Bulletin of the Coalition for Peace and Ethics | Special Issue on the Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises

Bulletin of the Coalition for Peace and Ethics Volume 14, n. 2 (October 2019) Special Issue  Commentary on the U.N. Inter-Governme...