International legal personality of the hong kong special administrative region

Chinese Journal of International Law

Volumn 7, Issue 2, 2008, Pages 339-352

  Sun, Zhichao ^a  

^a DONGGUAN UNIVERSITY OF TECHNOLOGY   (China)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 65249153040     PISSN: 15401650     EISSN: 17469937     Source Type: Journal    
DOI: 10.1093/chinesejil/jmn010     Document Type: Article

References (83)

1. Joint Declaration, Art, 1.
2. Joint Declaration, Art. 3(1). The decision to establish the HKSAR under the Sino-British joint Declaration is in turn based upon the PRC Constitution, Art. 31, which reads, "., .the state may establish special administrative regions when necessary".
3. Basic Law, Preamble.
4. The Basic Law of the HKSAR was promulgated on 4 April 1990 under the Decree of the President of the PRC, No, 26 and shall be put into effect as of 1 July 1997.
5. Basic Law, Art. 2 reads, "The National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law",
6. Basic Law, Art, 151,
7. Basic Law, Art, 152,
8. R. Mushkat, One Country, Two International Legal Personalities (Hong Kong University Press, 1997), 1,
9. Ibid. 1, n 1.
10. L, Oppenheim, International Law. A Treatise (2nd cdn. 1912, Vol, 1, Peace), 19.
11. 1933 Montevideo Convention on Rights and Duties of States, Art. I.
12. P. Malanczuk, AkehursLs Modern Introduction to International Law (7th edn. Routledge London, 1997), 91-108,
13. XU Chongde, Introduction to the Basic Law of the Hong Kong Special Administrative Region (Law Press China, 2000), 681-682,
14. See J.N. Hazard, Soviet Republics In International Law, 10 EPIL (1987), 418-423.
15. See C.N. Murphy and E. Augelll, International Institutions, Decolonization, and Development, 14 International Political Science Review (1993), 71.
16. The Hong Kong area (including Hong Kong Island, Kowloon Peninsula, the New Territories and outlying islands) became a British colony under three "Unequal Treaties" signed between the Qing Government and the British Government, namely the Treaty of Nanking signed in 1842, the Convention of Peking signed in 1860 and a convention signed in Peking in 1898 respecting an extension of the Hong Kong territory.
17. Above n.13, 682-683.
18. Joint Declaration, Art. 3(2),
19. Joint Declaration, Art. 3(10),
20. Joint Declaration, Annex II, Art. 2,
21. Joint Declaration, Annex II, Art. 3(a).
22. Joint Declaration, Annex II, Art. 4(b),
23. Joint Declaration, Annex II, Art. 4(a).
24. Joint Declaration, Annex I, Art, X),
25. Basic Law, Art. 13(1), Moreover, Art, 13(2} provides that the Ministry of Foreign Affairs of the PRC shall establish an office in Hong Kong to deal with foreign affairs. The Office of the Commissioner of the Ministry of Foreign Affairs of the PRC in the HKSAR was established accordingly,
26. Basic Law, Art. 13(3),
27. Basic Law, Art. 152(1) provides that representatives of the HKSAR Government may, as members of delegations of the PRC, participate in international organizations or conferences in appropriate fields limited to States and affecting the Region or may attend in such other capacity as may be permitted by the CPG and the international organization or conference concerned and may express their views, using the name "Hong Kong, China",
28. Basic Law, Art. 152(2) provides that the HKSAR may, using the name "Hong Kong, China", participate in international organizations and conferences not limited to States.
29. Hong Kong became a separate contracting party to GAIT in 1986. See Accession of Hong Kong, Succession, GATT Doc. L/5976 (23 April 1986), reprinted in 4 GATT: Basic Instruments and Selected Documents 27 (34th Supp. 1988).
30. Basic Law, Art, 52(3) provides that the CPG shall take the necessary steps to ensure that the HKSAR shall continue to retain its status in an appropriate capacity in those international organizations of which the PRC is a member and in which Hong Kong participates in one capacity and another. These provisions are necessary because Hong Kong used to join these organizations in the capacity of a dependent territory of Britain before 1997, but would join them in the capacity of a special administrative region of the PRC enjoying a high degree of autonomy after 1997.
31. Basic Law, Art, 152(4) provides that the CPG shall, where necessary, facilitate the continued participation of the HKSAR in an appropriate capacity in those international organizations in which Hong Kong is a participant in one capacity or another, but of which the PRC is not a member.
32. Website of the Department of Justice at www.doj.gov.hk/eng/about/ild.htm, accessed 10 October 2006.
33. Basic Law, Art, 150 reads, "Representatives of the Government of the Hong Kong Special Administrative Region may, as members of delegations of the Government of the People's Republic of China, participate in negotiations at the diplomatic level directly affecting the Region conducted by the Central People's Government."
34. Basic Law, Art, 48(9).
35. Basic Law, Art. 62(3).
36. An updated "List of Treaties in Force and Applicable to the HKSAR" may be found on the website of the BLIS at www.legislatton.gov.hk/ tnterlaw.htm. The list also identifies treaties that do not apply to the Mainland.
37. Website of the Constitutional Affairs Bureau (CAB) of the HKSAR Government at www.cab.gov.hk/en/issues/ external5.htm, accessed 10 October 2006.
38. Basic Law, Art. 153(2) provides that international agreements to which the PRC is not a party but which are Implemented in Hong Kong may continue ro be implemented in the HKSAR. The CPG shall, as necessary, authorize or assist the government of the Region to make appropriate arrangements for the application to the Region or other relevant international agreements.
39. Basic Law Bulletin Issue No. 4 (December 2002), 3.
40. The provisions of the ICCPR have been incorporated into Hong Kong's domestic law by virtue of the Hong Kong Bill of Rights Ordinance (Cap. 383).
41. Basic Law Bulletin Issue No. 4 (December 2002), 3.
42. Winfat Enterprises (HK) Co. Ltd v. Attorney-General of Hong Kong, 1985 1 AC 733.
43. I.A. Shearer, Starke's International Law (11th edn. Rutterworths, 1994), 71.
44. Sir Robert Jennings and Sir Arthur Watts (eds), Oppcnheim's International Law (9th edn. Longman, 1992), Vol. 1, 62.
45. Basic Law Bulletin Issue No. 7 (March 2005), 15.
46. Basic Law Bulletin Issue No. 4 (December 2002), 5.
47. A total of 14 UN human rights treaties apply to Hong Kong. Six entail a reporting requirement. A list of these treaties may be found on the website of the Home Affairs Bureau of the HKSAR Government at www.hab.gov, hk/en/policy-responsibi]itics/the-rights-of-the-individuas.s/human,htm.
48. The change was made under the Adoption (Amendment) Ordinance 2004 (Ord. No. 28 of 2004),
49. In the HKSAR, principal legislation is called an Ordinance, while subsidiary legislation may be in the form of Regulations, Rules, Orders or By-laws.
50. Basic Law Bulletin Issue No. 7 (March 2007), 12,
51. Basic Law, Art. 151 provides that the HKSAR may on its own, using the name "Hong Kong, China", conclude and implement agreements with foreign States and regions and relevant international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields,
52. The website of the CAB of the HKSAR Government is www,cab,gov.hk/en/ issues/extcrnal4,htm, accessed 10 October 2006.
53. Basic Law, Art, 96.
54. Basic Law, Art. 133.
55. Basic Law, Art. 155.
56. The CE in Council may make subsidiary legislation under an Ordinance in the form of Orders.
57. The website of the BLIS is www,legislation.gov.hk/cng/home,htm.
58. A list of international organizations limited to States in which the HKSAR participates may be found on the website of the CAB of the HKSAR Government at www.cab.gov. hk/en/issues/external1.htm.
59. A list of international organizations not limited to States in which the HKSAR participates may be found on the website of the CAB of the HKSAR Government at www.cab.gov.hk/en/issues/externa2.htm.
60. A list of the offices of these international organizations may be found on the website of the BLIS at www.legis-lation.gov.hk/table7ti.htm.
61. Basic Law, Art. 156,
62. Basic Law Bulletin Issue No, 7 (March 2005), 7,
63. For example, backed by an amended Foreign Missions and International Organizations Act 1991, the Canadian Government has upgraded the Hong Kong Office in Toronto, granting it "quasi-consular" status. See New Diplomatic Status, South China Morning Post, 8 December 1991, 2.
64. Basic Law, Art, 157(1).
65. Ibid.
66. Basic Law, Art, 157(2).
67. Basic Law, Art, 157(3).
68. Basic Law Bulletin Issue No, 7 (March 2005), 7,
69. Basic Law, Art. 157(4),
70. These agreements have been gazetted and are also provided on the BLIS website for information,
71. Since 1999, many arrangements between Mainland China and Macao SAR have come into force, for example: Mainland and Macao Closer Economic Partnership Arrangement and its Supplementary documents (effective from 1 January 2004);
72. Arrangement between the Mainland of China and Macao Special Administrative Region on the Avoidance of Double Taxation and Prevention of Fiscal Evasion with Respect to Taxes on Income (effective from ] January 2004);
73. Arrangement between the Mainland and the Macao Special Administrative Region on the Mutual Recognition and Enforcement of Civil and Commercial Judgments (effective from 1 April 2006); Arrangement of the Supreme People's Court on Enforcement of the Arbitral Awards of Each Other between the Mainland and Macao Special Administrative Region (effective from 1 January 2008).
74. 71he website of the Department of Justice is www.doj.gov.hk/eng/topical/ mainlandlaw.htm, accessed 12 October 2006,
75. Above n.12, 80.
76. Above n.12, 81.
77. Above n.8, 3.
78. K. Zemanek, International Organizations, Treaty-Making Power, 2 EPIL (1995), 1343 -1346,
79. Above n.12, 93,
80. Above n.13, 684-685.
81. Basic Law, Art, 13(1).
82. Basic Law, Art, 13(3).
83. Basic Law, Art. 19.