Following is a question by the Hon Lee Cheuk-yan and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (December 17):
It has been reported that in July this year, the Foreign Affairs Committee of the House of Commons of the Parliament of the United Kingdom (UK) launched an inquiry into the UK's relations with Hong Kong 30 years after the signing of the Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration), and planned to send a delegation to Hong Kong this month. However, the Chinese Embassy in UK told the chairman of the Committee last month that should members of the Committee attempt to visit Hong Kong, they would be denied entry. In this connection, will the Government inform this Council:
(1) given that Article 154 of the Basic Law stipulates that "[t]he Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions", whether the authorities know the legal basis for the Chinese Embassy in UK to state that members of the aforesaid Committee would be denied entry to Hong Kong, as well as the number of occasions since 1 July 1997 on which the Ministry of Foreign Affairs of China denied entry of members of parliaments (MPs) of foreign countries to Hong Kong and the number of such MPs involved;
(2) whether it has approached the Central People's Government (CPG) to gain an understanding on whether UK, as one of the signatories to the Joint Declaration, has any role in respect of the implementation, on and after 1 July 1997, of the basic policies of China regarding Hong Kong as set out in the Joint Declaration; if it has, of the details; and
(3) whether it has approached CPG to gain an understanding on the purpose of the Chinese and UK governments registering the Joint Declaration with the United Nations in June 1985, and whether the United Nations or the organisations under it may monitor the implementation of the Joint Declaration?
Upon consulting the Department of Justice and the Security Bureau, our reply to the questions raised by Hon Lee Cheuk-yan is as follows:
As stated in the Preamble to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law), "Hong Kong has been part of the territory of China since ancient times; it was occupied by Britain after the Opium War in 1840. On 19 December 1984, the Chinese and British Governments signed the Joint Declaration on the Question of Hong Kong (Joint Declaration), affirming that the Government of the People's Republic of China will resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997, thus fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong."
On China's basic policies regarding Hong Kong, Paragraph 3(12) of the Joint Declaration and Section 1 of Annex I "Elaboration by the Government of the People's Republic of China of its Basic Policies Regarding Hong Kong" thereto have stated clearly that China's basic policies regarding Hong Kong and the system of the Hong Kong Special Administrative Region after its establishment are to be stipulated in the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China to be enacted and promulgated by the National People's Congress pursuant to the Constitution of the People's Republic of China. The Basic Law was adopted at the Third Session of the Seventh National People's Congress of China on 4 April 1990 and has been put into effect since 1 July 1997. According to the explanations by Ji Pengfei, Chairman of the Drafting Committee for the Basic Law, on the Basic Law (Draft) and its related documents at the Third Session of the Seventh National People's Congress, China's basic policies regarding Hong Kong have been incorporated into, and stipulated within, the Basic Law.
Since 1 July 1997, Hong Kong has become a special administrative region of China, and has been practising "one country, two systems", "Hong Kong people administering Hong Kong" and a high degree of autonomy in accordance with the Basic Law. As reiterated by the spokesperson of the Ministry of Foreign Affairs of the State Council at the regular press conference on 3 December 2014, "Hong Kong has returned to China back in 1997, and is now a special administrative region of China. The 1984 Sino-British Joint Declaration makes distinctions about rights and obligations of China and the United Kingdom in terms of China's resumption to exercise sovereignty over Hong Kong as well as relevant arrangements during the transitional period. The United Kingdom has no sovereignty, jurisdiction or right of supervision over Hong Kong, and there is no such thing as 'moral obligation'".
The reply to the substantive part of the questions is as follows:
(1) The planned visit to Hong Kong by members of the Foreign Affairs Committee of the House of Commons of the Parliament of the United Kingdom concerns an international instrument signed between the Chinese and British governments, i.e. the Central People's Government and a foreign government. The plans relating to the so-called "inquiry" by the members of the Committee and entry into Hong Kong for such purpose are official acts on the part of the United Kingdom in themselves. Moreover, these matters have been a subject of representations made by the Central People's Government to the British side (including the Committee) through diplomatic channels. As such, the matter clearly concerns the foreign affairs of China. Under Article 13(1) of the Basic Law, the Central People's Government shall be responsible for the foreign affairs relating to the HKSAR. The HKSAR Government has no further comment to add on this.
(2) China has resumed the exercise of sovereignty over Hong Kong on 1 July 1997. Its basic policies regarding Hong Kong has been put into effect, manifested and stipulated in the Basic Law. The provisions of the Joint Declaration have been fully implemented, and its purpose and objectives have also been fully fulfilled. As stated above, the United Kingdom has no sovereignty, jurisdiction or right of supervision over Hong Kong, and there is no such thing as "moral obligation".
(3) According to relevant information, Article 102 of the Charter of the United Nations provides that "[e]very treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it". The Joint Declaration was registered with the United Nations in order to fulfil the obligation under Article 102 of the Charter. According to the Treaty Handbook prepared by the Office of Legal Affairs of the Secretariat of the United Nations, where an instrument is registered under Article 102 of the Charter, this does not imply a judgement by the United Nations on the nature of the registered instrument, the status of a party, or any similar questions. As such, it certainly does not imply that the United Nations can "monitor" the implementation of a particular instrument on the basis of its registration by the relevant State.
Moreover, Hong Kong affairs are, in the words of the Spokesperson for the Secretary-General of the United Nations at the press briefing on 30 September this year, a "domestic matter". Article 2(7) of the Charter provides that "nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter".
Under the principle of sovereign equality of States as stipulated in Article 2(1) of the Charter, no State shall interfere in the internal affairs of another. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations in Resolution 2625 of the General Assembly (1970) stipulates that "[n]o State or group of States has the right to intervene, directly or indirectly, for any reason, whatever, in the internal or external affairs of any other State", and "[e]very State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State". The Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States in Resolution 36/103 of the General Assembly (1981) also provides for "[t]he sovereign and inalienable right of a State freely to determine its own political, economic, cultural and social systems, in accordance with the will of its people, without outside intervention, interference, subversion, coercion or threat in any form whatsoever". Non-interference in each other's internal affairs is a basic norm of international relations and a fundamental principle of international law.
Ends/Wednesday, December 17, 2014