• 國際法庭難相見|戴啟思
  • 2020-06-20    

 

‘See you in court!-Maybe.’

You must have been living the life of a secluded monk or nun these past few weeks not to be aware of the international commotion that the decision of the National People’s Congress to impose national security laws on Hong Kong.

The move has caused the United Kingdom to cry ‘foul’ and assert that the P.R.C. has breached the Joint Declaration (“J.D.”). The U.K. Prime Minister, Boris Johnson, has announced a plan to enlarge the limited residency rights in the U.K that go with holding a BNO passport by way of attempting to make things right. Other countries have chimed in saying that introducing national security laws in this manner is unacceptable and have resolved to bring pressure to bear on the P.R.C.

The P.R.C., for its part, has not admitted a breach of the J.D.. For it to do so would contradict its stated position that the J.D. is a dusty legal relic, its purpose achieved when it resumed sovereignty over Hong Kong in 1997. It simply is not relevant to what is going on in 2020.

The P.R.C. position is that what goes on in Hong Kong is an internal matter and that foreign countries have no right to ‘meddle’ in what are ‘domestic affairs’. Its foreign affairs spokespersons have threatened unspecified ‘counter-measures’ should foreign countries make good threats of sanctions.

Whatever the legal niceties to the arguments that are brewing, Hong Kong residents will be the losers. I have been asked repeatedly whether the matter can be sorted out in an international court where impartial judges can rule on the dispute and everyone can recalibrate their views in light of the judgment. Going to court, they say, is the hallmark of a responsible and civilized approach to dispute resolution. Why is it not happening over the present disagreements?

I am sorry to say that this will not happen.

In international law, nation states enjoy equality amongst themselves and complete autonomy. When they get together and resolve on a course of action that may have international repercussions, the P.R.C. is on a par with Singapore or Luxembourg. States are not accountable to a court or other dispute resolution body unless they agree to be bound by such a body.

The question whether the P.R.C. and the U.K go to an international dispute resolution body to sort out differences about implementation the J.D. will be found in the text of the J.D.. There is no such provision in the J.D..

With hindsight, it may have been a good idea for the P.R.C. and the U.K to include a clause in the J.D. that, in the event of a disagreement, the dispute would be referred to the International Court of Justice (“ICJ”) in the Netherlands.

That court was set up in 1945 under the United Nations Charter to deal with disputes referred to it by nation states either under the terms of a treaty that provided for such a reference or, in the absence of such a treaty, by states that were having differences and they now wanted to submit the dispute to the ICJ.

Would the P.R.C. or the U.K agree now to sort out their differences in the ICJ? Without even considering whether the U.K would be willing to do this, the P.R.C.’s insistence that the J.D. is in the waste paper basket of history, means that a reference to the ICJ or another third party is out of the question. (There is no requirement that states must go to the ICJ to sort out differences. Before the ICJ existed some states with recognised expertise and integrity in foreign affairs were often asked to arbitrate disputes. The Pope was often asked to act in such matters as head of the Vatican State which had no grand international ambitions of its own and so was considered impartial by most states.)

It is because nation states cannot be forced to submit to international courts that international law places a high value on compliance with international treaties, whether they are bilateral treaties, like the J.D., or multilateral treaties involving many states, such as modern human rights traties.

If a state is seen by other states not to be serious about its breaches of treaties will discourage states from entering into other treaties with them or, if they do, result in them stipulating tougher terms when negotiating international agreements

Living up to treaty obligations without coercion is the foundation of international world order and is perhaps the most important legal rule, dating back for centuries when it was formulated in Latin as ‘pacta sunt servanda’-‘agreements must be kept’.

That rule is now expressed in Article 26 of the Vienna Convention on the Law of Treaties, a treaty to which binds both the U.K and the P.R.C.

Article 26 “Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

It really does not matter, at the end of the day, whether an international court or other arbitral body rules that a country has or has not breached a treaty obligation. What matters is the consensus of international opinion on the subject. If other nation states consider that another state is not playing by the international rule book, that state suffers in the long term.

In the current dispute a lot will turn upon how international community treats the P.R.C.’s assertion that the J.D. has no present legal effect. If it really is ‘dead’, then the complaints about unwarranted interference in internal affairs may have some force.

However, is the international consensus is that the J.D. is a treaty that imposes solemn legal obligations going beyond 1997, the P.R.C. risks being seen as a country that does not comply with the ‘pacta sunt servanda’ principle except when it suits.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

探索驚奇精彩的 wONdEr 故事,請LIKE 我們的Facebook Page,並設定為「搶先看」:

https://www.facebook.com/wondermedia.hk/


----------------------------

全新「和你撐計劃」 專享獨家禮遇 實際行動支持《壹週刊》

按此了解更多

----------------------------

壹呼百應 號召有心人 請香港人睇壹週刊

按此了解更多

-----------------------------

【《壹週刊》昔日紙本檔案庫】

30年壹仔經典 壹壹重現!