【英文特區】The Diplomat: The Sino-British Joint Declaration and International Law (Patreon)

The Diplomat: https://thediplomat.com/2020/09/the-sino-british-joint-declaration-and-international-law/

Is there a role for international courts in upholding the Sino-British Joint Declaration?

Simon Shen[1]

The recent implementation of the National Security Law in Hong Kong has brought about unprecedented mass arrests and the barring of pro-democracy candidates from elections. Despite strong opposition by their mainland Chinese counterparts, many international politicians consider it as a serious violation of the Sino-British Joint Declaration (the Declaration). This naturally led to the question, can China be held accountable for breaking an international treaty, from an international law perspective? This article is purely intended for technical discussion and does not reflect the author’s views and opinions.

Firstly, the Declaration itself does not have a mechanism endorsed by both parties to ensure its compliance. Even though the agreement is registered with the United Nations, it did not include mechanisms of supervision by the UN, unlike the case of Finland’s Åland Islands. Therefore, only the signatories of the declaration have the right to raise any potential terms violations. This has happened back in 1992, when Hong Kong governor Chris Patten proposed political reforms without prior consultation with China, who responded with accusations of Britain violating the Declaration. In theory, China could have filed a formal complaint against Britain, but refrained from doing so possibly in hopes of a smooth handover process. Similarly, following recent events, Britain criticized China for breaking the agreement, but this would have no actual impact unless the case is formally brought to the international court, say the International Court of Justice (ICJ), for a breach of contract.

The challenges of bringing the case to the International Court of Justice

In an article in the Foreign Affairs, former U.S. Consul General to Hong Kong, Kurt Tong disagrees with Washington's decision to rescind the US-Hong Kong Policy Act. He believes this would only hurt the people of Hong Kong and damage US foreign policy interests without punishing China. Instead, he suggests taking the matter to the International Court of Justice (ICJ) over China’s violation of the Sino-British Joint Declaration. Though China would likely ignore the court's rulings, Tong suggests that the case itself would be an embarrassing blow to the administration. The suggestion, however, faces several challenges.

First, the US would need to provide proof to the ICJ that Beijing's violations have directly caused systemic damage to the US, given that the US is not a signatory of the Declaration. Even if the ICJ were to accept the case, the countries involved would also need to agree to a binding arbitration by an international court to make the case start, which Beijing is unlikely to agree to. Alternatively, in lieu of adversarial hearings, the ICJ can give advisory opinions upon request by specific UN agencies, such as the case of the sovereignty disputes over the Chagos Islands. However, given China’s present-day influence over member states in the UN General Assembly, China might not even be worried should the Hong Kong case be taken up in the GA.

What about the Permanent Court of Arbitration?

The remaining option is to involve the Permanent Court of Arbitration (PCA), an organization outside the UN framework that accepts unilateral submission of disputes (this must be technically set up as a third party seeking legal advice or by connections to a treaty). The PCA is not a conventional court with legally binding power, but it seeks to resolve international disputes through arbitration. Interestingly, China has previously been involved with the PCA over territorial disputes in the South China Sea, a case which it lost to the Philippines (technically, the Philippines first brought the case to the UNCLOS, which in turn passed it to the PCA). China was uncooperative throughout the process, refusing to participate in the hearings and calling the verdict “a farce”. Thus, history has shown that this strategy may not directly impact China’s actions.

However, a PCA ruling may still have other knock-on effects, especially if the US becomes involved. Although the US is not a signatory to the Sino-British Joint Declaration, it may wield its international influence and set an example for other countries by revoking Hong Kong's special status or imposing relevant sanctions.

On the other hand, Britain and other European countries have long resisted sanctions against China for several reasons: first, sanctions against China or Russia have not been effective historically; second, Europe’s own interests depend highly on the Chinese market; third, Europe hoped to distance itself from the unilateralist policies of the Trump administration. Nonetheless, European countries may still have significant influence in Hong Kong’s affairs by recourse to international law.

Britain, for one, has responded to the national security law with strong condemnation of China and an offer of immigration opportunities for many Hong Kongers. This represents a drastic change of tone from its previously passive stance and is a result of the far-reaching and grave consequences of the security law. Should Britain choose to further escalate its actions, as a co-signatory of the Declaration, it may take the dispute to one of the courts as the final measure.

Meanwhile, the EU has also spoken out against China’s treatment of Hong Kong. The European Parliament has passed a resolution that recommends the EU conduct an Arria-formula meeting at the UN Security Council. The resolution also calls for a UN special envoy to monitor Hong Kong’s situation, and to consider putting China before the ICJ for violating not only the Sino-British Joint Declaration but also the International Covenant on Civil and Political Rights. Despite the European Parliament’s support of legal action, it has limited implementation power, thus the real challenge lies in mobilizing concrete actions from member states of the EU.

Hypothetically, even if the ICJ or PCA rules against China, so what?

First, since this Declaration relies solely on Chinese cooperation and lacks any other monitoring mechanisms, even if an international court determines that the agreement has been violated, China is unlikely to concede. Britain has few options other than demand reparations; in response China would predictably “strongly condemn” and reject any such requests. However, this scenario would drastically undermine the international image of China and provide a justification for other countries to re-evaluate their own agreements with China.

Secondly, the PCA, unlike the ICJ, also accepts requests from organizations and private parties for dispute resolution. This gives an opportunity for a third party or country (other than the Chinese or the British) to bring this case to the PCA. Should the PCA rule against China, it would put pressure on Britain to take action, despite previous British reluctance to provoke an important trade partner. This may also set a precedent for other parties such as civil groups to submit their own cases to the PCA regarding Chinese influence in Hong Kong.

Thirdly, although PCA decisions are not legally binding, they may influence the international law framework as legal references. For example, in the Philippines vs China dispute, the PCA verdict made clear recommendations on what constitutes an "island" and what constitutes a "rock". As a result, Taiping / Itu Aba Island in the South China Sea is re-defined as a "rock", challenging Taiwan’s territorial claim in the fiercely contested waters. By the same logic, the PCA can also make recommendations on how to "remedy" the situation after the Sino-British Joint Declaration is invalidated, leading to stronger justification for potential international legal and political actions.

[1] Dr. Simon Shen is the Founding Chairman of GLOs (Glocal Learning Offices), an international relations start-up company. He also serves as an adjunct associate professor and associate director of the Master of Global Political Economy Programme of the Chinese University of Hong Kong, and a visiting scholar of National Sun Yat-sen University of Taiwan. The author acknowledges Michelle King, Stanley Ho, Sourdou, Ah Gil and Alex Yap for their assistance in this piece.