When 'one country, two systems' meets 'one person, one vote': the law of treaties and the handover narrative through the crucible of Hong Kong's election crisis

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Date: Dec. 2015
From: Melbourne Journal of International Law(Vol. 16, Issue 2)
Publisher: Melbourne Journal of International Law, Inc.
Document Type: Article
Length: 8,933 words
Lexile Measure: 2190L

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Contents I Introduction II Background to the 2014 Election Crisis A Beginning of the Hong Kong-UK Relationship B UK Acquisition of the New Territories C China's Liberalisation D British Democratisation of Hong Kong Pre-Handover III The Joint Declaration, the Basic Law and the 2014 Election Crisis A The Sino-British Joint Declaration 1 An Overview of the Joint Declaration 2 Substantive Rights under the Joint Declaration B The Basic Law and the Initial Post-Handover Period 1 Government Structure under the Basic Law 2 The Initial Post-Handover Period 3 The Basic Law and Selection of a Chief Executive 4 Incorporation of the International Covenant on Civil and Political Rights C The 2014 Election Crisis 1 Failure to Implement Universal Suffrage 2004-14 2 Beijing's 2014 'White Paper' 3 The NPCSC's August Decision 4 The 'Umbrella Movement' IV 'Universal Suffrage', the Law of Treaties and the Sino-British Joint Declaration A Treaty Law Sources and Applicability B Treaty Definition C Treaty Validity: Continuance in Force or Termination? 1 Presumption of Continuance in Force 2 The Termination Provisions of the VCLT D Treaty Interpretation 1 The General Rule of Interpretation 2 Supplementary Means of Interpretation E Treaty Reservations V Revisiting the Law of Treaties in Light of the Sino-British Joint Declaration A Expanding the 'Hard Law' Lexicon? B A More Elastic Version of Pacta Sunt Servanda? C A Re-Sequencing Option for the Treaty Interpretation Process? D Implied Treaty Reservation Terminations? VI Conclusion

In Hong Kong's recent election crisis--a non-violent uprising against China pre-selecting candidates for Chief Executive and thus foreclosing civic nomination--both sides (establishment and pro-democracy) have attempted to interpret the term 'universal suffrage' based exclusively on its inclusion in Hong Kong's mini-constitution, the Basic Law. In so doing, however, they have given short shrift to the agreement that gave rise to the Basic Law in the first place: the 1984 Sino-British Joint Declaration. But while the Joint Declaration provides important textual insights, it simultaneously raises significant issues regarding the application of the law of treaties. For example, did the Joint Declaration terminate upon Hong Kong's July 1997 transfer to China and the effective date of the Basic Law? Even if still valid, is its language too vague to offer meaningful interpretive assistance? And does the United Kingdom's 1976 Hong Kong exclusion reservation to art 25(b) of the International Covenant on Civil and Political Rights, which provides for universal suffrage, survive the handover? Applying the law of treaties ultimately reveals that the Joint Declaration is still in force and can be interpreted to provide for civic nominated elections in Hong Kong. Nevertheless, on deeper consideration, reliance on traditional treaty law in this context is cumbersome and inefficient. This article posits that the inherently confusing situation of the Hong Kong handover, wherein a decolonising liberal democracy negotiated what amounts to a recolonisation with a communist dictatorship stipulating creation of a hybrid political system, calls for new approaches to treaty doctrine, including formulation of a principle of implied reservation termination and re-sequencing treaty interpretation to allow consideration of...

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Gale Document Number: GALE|A443652961