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Hong Kong and Succession of Treaties

Published online by Cambridge University Press:  17 January 2008

Roda Mushkat
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Extract

It is not surprising that, at a time when the world's political maps are being constantly redrawn, the subject of “State succession” features prominently in international legal discourse. By the same token, the infrequency of “waves” of transformation, the diversified modalities of change (cession, annexation, decolonisation, dissolution, secession, merger, unification) and the varying contextual circumstances have resulted in a less than coherent theoretical or practical framework for resolving issues of State succession.1 Nor can limited international attempts at “codification”—represented in the 1978 Vienna Convention on Succession of States in Respect of Treaties2 (the “1978 Succession Convention”) and the 1983 Vienna Convention on Succession of States in Respect of Property, Archives and Debts3—be regarded as expressing established customary norms or articulating laws grounded in consistent State practice, judicial precedent or juristic opinion.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 46 , Issue 1 , January 1997 , pp. 181 - 201
Copyright
Copyright © British Institute of International and Comparative Law 1997

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References

1. See Lighthouses Arbitration Between France and Greece (Claims No.2 and 4), Permanent Court of Arbitration. 24 July 1956, extracted in (1956) 231.L.R. 81,91 (“The variety of possible hypotheses of territorial succession, the political considerations which often govern the solution of juridical problems relative thereto, and the rarity of arbitral or judicial decisions resolving the problem in a really clear and unequivocal manner after convincing argument heard, explain both the vagaries of international practice and the chaotic state of authoritative writings”).

2. Repr.in (1978) 171.L.M. 1488. The Convention is not yet in force, in the absence of the necessary 15 ratifications; as of Apr. 1996, 14 States are listed as parties, including four by virtue of “succession” (Bosnia-Herzegovina, Croatia, Slovenia and Slovakia) as well as (questionably) Yugoslavia.

3. Repr. in (1983) 22 I.L.M. 306. As of Apr. 1996, the Convention has attracted only six signatures (including Yugoslavia) and four accessions (Croatia, Estonia, Georgia and Ukraine).

4. See e.g. Daniel P. O'Connell, “Reflections on the State Succession Convention” (1979) 39 Z.a.o.R.V. 725, 726.

5. See ibid for the view that the 1978 Succession Convention was indiscriminate and capricious, forcing the topic “within the constraints of inflexible dogmas that are at once over-simple and insufficiently comprehensive”. See also Sari T. Korman. “The 1978 Vienna Convention on Succession of States in Respect of Treaties: An Inadequate Response to the Issue of State Succession” (1992) 16 Suffolk Trans.L.J. 174, 197 (contending that the “Vienna Convention's drafters chose simplicity at the expense of stability and predictability”); and Marco A. Martins, “An Alternative Approach to the International Law of State Succession: Lex Naturae and the Dissolution of Yugoslavia” (1993)44 Syracuse L.Rev. 1019, 1037 (asserting that “instead of establishing a singular foundation for the resolution of future problems of state succession [the Convention] simply codifies the different theoretical approaches to the issue and fails to clearly indicate how cases should be categorized in accordance with the different approaches”).

6. Art.16: “A newly independent State is not bound to maintain in force, or become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates”.

7. Korman, . op. cit. supra n.5, at pp.187–188 (citing the International Law Association's finding (in its 1985 report The Effect of Independence on Treaties) that of all successor States only Israel contended that none of the predecessor States' treaties survived independence).Google Scholar

8. Arguably, the following examples do not qualify as “newly independent States” under Art.16, which is construed as pertaining to former colonial territories (see Crawford, James R., “Remarks”, in ASIL Proceedings 1992, p.15, at p.17). Note, however, that a distinction between States that emerged from colonial dependency and other new States has been rejected by the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987), s.210 (providing for the application of a clean slate for all new States): See Detlev F. Vagts, “State Succession: The Codifiers' View” (1993) 33 Virginia J.I.L. 275, 288 (recalling the American codifiers' consideration of the distinction as “unworkable and unfair”” since many separating States exhibit defining characteristics similar to those exhibited by newly independent countries). See also Andrew M. Beato, “Newly Independent and Separating States' Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union” (1994) 9 American Univ J.I.L. & Policy 525, 544 et seq. (highlighting the restrictive nature of the dependent territory standard which overlooks “hybrid” cases of dependency occurring exclusively within a separated State, as distinct from traditional colonial entities).Google Scholar

9. See Arts.11 and 12, Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity, repr. in (1991) 301.L.M. 463 (continued application of treaties of the FRG and GDR respectively); also Art.24 (assumption of debts and liabilities vis-à-vis foreign States).

10. See Art.12, Agreement Establishing the Commonwealth of Independent States, repr. in (1992) 31 I.L.M. 143 (“The High Contracting Parties undertake to discharge the international obligations incumbent on them under treaties and agreements entered into by the former Union of Soviet Socialist Republics”).

11. See “response letters” by Bosnia-Herzegovina, Croatia and Slovenia regarding “readiness to fulfil the treaty and other obligations of the former Socialist Federal Republic of Yugoslavia”, cited in Williams, Paul R., “The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?” (1994) 23 Denver J.I.L. & Policy 1.28–29.Google Scholar

12. Williams, idem, p.8.

13. Ibid (echoing opinions expressed at the Extraordinary Meeting on 16 Jan. 1992 of the Committee of Legal Advisers on Public International Law for the Council of Europe).

14. Idem, pp.8–9 (referring to the all-inclusive application of Arts.33 and 34 of the 1978 Succession Convention). See also Michael John Volkovitch, “Righting Wrongs: Towards a New Theory of State Succession to Responsibility for International Delicts” (1992) 92 Col.L.Rev. 2162, 2164 (arguing that “the rule to be applied in any particular case may be determined by the kind of transformation the state has experienced, be it secession, merger or decolonization”).

15. See Amos S. Hershey, “The Succession of States” (1911)5 A J.I.L. 285, 289.

16. For the theory, known as the Nyerere approach, see Julius Nyerere, “Problems of State Succession in Africa: Statement of the Prime Minister of Tanganyika” (1962) 11 I.C.L.Q. 1210.

17. See Oscar Schachter. “State Succession: The Once and Future Law” (1993) 33 Virginia J.I.L. 253,259,260.

18. See Yilma, Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States of East Africa(1983). pp.137–139.Google Scholar

19. See Okon, Udokang, Succession of New States to International Treaties (1972), p.109 (noting that “abrupt discontinuity of all treaty obligations contracted by the predecessor states might well lead to a legal vacuum and serious confusion” as well as isolation from the international community).Google Scholar

20. See International Law Association, “Interim Report of the Committee on the Succession of New States to the Treaties and Certain Other Obligations of Their Successors”, in International Law Association Report of the Fifty-Second Conference (1966), p.584.Google Scholar

21. See Schachter, , op. cit. supra n.17, at p.259.Google Scholar

22. Ibid. See also observations by Louis Henkin in Caroline S. West (Reporter), “State Succession and Relations with Federal States”, in ASIL Proceedings 1992, p.1, at pp.21–22 (identifying “interest in stability” as a determining principle of continuity).

23. See Schachter, idem, p.260.

24. See Korman, , loc. cit. supra n.5.Google Scholar

25. Idem, p.198 (referring inter alia to O'Connell's discussion of the impact of treaty continuity on the successor State's economic position, particularly its ability to attract foreign investment).

26. Vagts, , op. cil supra n.8, at p.281.Google Scholar

27. Ibid (using the example of a “state that enters into an arms control treaty gives up various opportunities to strengthen its own defense, because it believes it can count on the other state's corresponding sacrifice”; similarly, individual citizens “make investments in the territory of the other state because of the assurance [often contained in a treaty of friendship, commerce and navigation or bilateral investment treaty] that they have a right to establish themselves and that their investment will not be taken from them except upon prompt, adequate and effective compensation”).

28. Ibid.

29. See C. Wilfred Jenks, “State Succession in Respect of Law-Making Treaties” (1952) 29 B.Y.l.L. 105–144.

30. O'Connell, Daniel P., “Independence and Succession to Treaties” (1962) 38 B.Y.l.L. 84, 179 (endorsing the implication of Jenks's argument). Elsewhere, O'Connell notes the “extent to which treaties are embodied in municipal law and administrative practices” and the extent to which such interconnection has “ramifications in the operation of ministries concerned with air, customs, tariffs, immigration, national service, justice, even in the rules of court”; hence, “to dismantle the legislation which presupposes international cooperation in treaty form … would in fact set in train grave social consequences and would affect many legal expectations and the established interests of many people, both nationals and aliens”: “Recent Problems of States Succession in Relation to New States” (1970–11) 130 Hag. Rec. 95, 190.Google Scholar

31. See Jenks., op. at. supra n.29, at p.144.Google Scholar

32. For a discussion of “displacement of treaty law … to allow for the continued development of international regulation” see Christine Chinkin. Third Parties in International Law (1993), pp.138–140 (relying on, in addition to succession, examples from international organisations, international humanitarian law and the law of the sea).Google Scholar

33. Jenks, , op. cit. supra n.29, at p.142.Google Scholar

34. Schachter, , op. cit. supra n.17, at p.259.Google Scholar

35. Ibid.

36. Ibid.

37. See Rein Mullerson. “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia” (1993) 42 I.C.L.Q. 473, 489 et seq.

38. See Williamson, Edwin D. and Osborne, John E., “A US Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia” (1993) 33 Virginia J.I.L. 261,265 (citing the 1979 International Convention Against the Taking of Hostages, as well as the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents and the 1971 Convention on Psychotropic Substances).Google Scholar

39. Ibid (citing the 1956 Statute of the International Atomic Energy Agency and the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction).

40. Advisory Opinion, Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany to Poland (1923) P.C.I.J., Ser.B, No.6 (10 Sept.) 36 (“it can hardly be maintained that, although the law survives, private rights acquired under it have perished”). The principle was also confirmed in Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) (1926) P.C.I.J., Ser.A. No.7, 41–42 (22 Mar.). For a most.comprehensive exposition of the doctrine of acquired rights and relevant practice see O'Connell., Daniel P.State Succession in Municipal Law and International Law (1967), Vol.1. pp.237–481.Google Scholar

41. For references to cases regarding land leases, right to exploit forest resources and right to exercise a profession or established business see Volkovitch, , op. cit. supra n.14, at p.2204, nn.227–229.Google Scholar

42. See idem, p.2205 (citing the Oxford Encyclopedia of European Law: Institutional Law, pp.9–10, to support the contention that the concept of droit acquis “has become a fun damental tenet of European Community law”).

43. See Mullerson, , op. cit. supra n.37, at pp.490Google Scholaret seq. (noting, inter alia, that, while originally the doctrine focused on vested property rights, “the situation has changed” most significantly, the right to property has become a human right which, together with other rights, is guaranteed under international human rights treaties, adhered to by the majority of States). See also Jenks, , op. cit. supra n.29. at p.142 (attributing a “continuing character” to any multipartite instrument of a legislative nature which has the “effect of vesting rights in individuals and organizations”, e.g. the ILO conventions).Google Scholar

44. See Medley Bull, , The Anarchical Society (1977), p.4 (listing three basic values taken account of by all societies: security against violence that results in death or injury; insurance that “promises, once made, will be kept, and agreements, once established, will be maintained”; and stable possession safeguarded by rules of property).Google Scholar

45. Martin Wight, International Theory—The Three Traditions (1991), p.238.Google Scholar

46. See Martins, , op. cit. supra n.5, at p.1057.Google Scholar

47. Ibid.

48. The principle is incorporated in Art.62 of the 1969 Convention on the Law of Treaties. In the context of succession, the principle would mandate the validity of predecessors' treaties so long as there are no material changes in relevant facts and circumstances that would make performance of the agreement an inequitable responsibility.

49. See Martins, , op. cit. supra n.5, at pp.1055–1057.Google Scholar

50. See supra nn.7–11, and accompanying text.

51. See Korman, , op. cit. supra n.5. at pp. 194–199 (identifying reasons such as compromise of desires with those of the international community in order to receive assistance required to survive the turbulent transition period: recognition of the stabilising effect of continuity of treaties on the relationship between contracting States and on the international community as a whole: economic, political and “sometimes” military pressure from contracting States and the international community; mutual benefits in continuation of the (bilateral) treaty: costs of non-continuity, e.g. inability to attract foreign investors).Google Scholar

52. While under the prevailing doctrine recognition is viewed as “declaratory” of possession by an entity of the characteristics of Statehood (as distinct from “constitutive” in the sense of conferring “legal existence”). States have on occasion engaged in a “constitutive process” (by “linking” recognition to compliance with certain common standards). See Narc, Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (1992)Google Scholar 86 AJ.I.L. 569,604, 605, 607. It may also be argued that the notion of “Statehood” (or “membership in the international community”) presupposes acknowledgement of universal normative constraints. See Williamson, and Osborne, , op. cit. supra n.38, at p.273 (asserting that expectations of continuity “convey to new leaders—revolutionary or otherwise—that nation-states have obligations that simply cannot be wiped-clean as a result of local political machinations”).Google Scholar

53. See e.g. “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”, adopted by the Council of the EC on 17 Dec. 1991. repr. in Hurst Hannum. Documents on Autonomy and Minority Rights (1993). p.85. See also Lucinda Love. “International Agreement Obligations After the Soviet Union's Break-Up: Current United States Practice and Its Consistency with International Law” (1993) 26 VandJ.Trans.L. 373, 395 (quoting from an address by James A. Baker at Princeton University on 12 Dec. 1991 which had outlined the conditions under which the US would recognise new nations: “We will welcome into the community of democratic nations those new political entities…who will adhere to international obligations”).Google Scholar

54. See supra nn. 10 and 11.

55. See e.g. exchange of notes between the American embassy at Kiev and the Ukraine Ministry of Foreign Affairs on 10 May 1995 concerning the succession of Ukraine to bilateral treaties between the US and the former USSR following the dissolution of the USSR (repr. in Marian Nash (Leich), “Contemporary Practice of the United States Relating to International Law” (1995) 89 A.J.I.L. 761): “In conducting their discussions, the experts took as a point of departure the continuity principle set forth in Article 34 of the Vienna Convention on Succession of States in Respect of Treaties. In examining the texts they found that certain treaties to which the principle applied had since expired by their terms. Others had become obsolete and should not be continued in force between the two countries. Finally, after a treaty-by-treaty review, which included an examination of the practicability of the continuance of certain specific treaties, they recommended that our two Governments agree no longer to apply those treaties” (emphasis added).

56. For the relevance of such a factor see the 1978 Succession Convention, Arts.30(3)(a), 31 (1 )(b). 32(6). 33(2), 34(2)(b). 35(c).

57. Note, however, that “political character” as such is not a pertinent criterion since almost all treaties are to some degree politically motivated. See O'Connell, (1970), op. cit. supra n.30. at p. 189.Google Scholar

58. E.g. the multilateral 1968 Treaty on the Non-Proliferation of Nuclear Weapons, the 1972 Anti-Ballistic Missile Treaty (between the US and the former USSR).

59. See George Bunn and John B. Rhinelander, “The Arms Control Obligations of the Former Soviet Union” (1993) 33 Virginia J.I.L. 323,335 (contending that “to permit some or all of [the Soviet Republics] to hold nuclear weapons under the NPT would defeat its basic purpose to limit nuclear-weapon states to five; it could even have a domino effect in producing more nuclear-weapon states”).

60. Art.62,1969 Convention on the Law of Treaties.

61. See Mullerson, , op. cit. supra n.37, at p.493.Google Scholar

62. Williamson, and Osborne, , op. cit. supra n.38, at p.267.Google Scholar

63. See 1978 Succession Convention, Art.4(l).

64. Based largely on UN practice in relation e.g. to India-Pakistan (1947—India allowed to retain its seat in the UN, notwithstanding changes in frontiers or constitution, while Pakistan was admitted as a new member through formal application proceedings): Pakistan–Bangladesh (1971—Pakistan's membership remained unaffected by the loss of its eastern province upon the secession of Bangladesh); former USSR (1991—the legal personality of the USSR held to have survived its changes in government, name and territorial boundaries; and to have been inherited by Russia, which constituted the dominant part of the former USSR in geographical size, population, resources and military strength).

65. Williamson, and Osborne, , op. cit. supra n.38, at p.268.Google Scholar

66. Ibid.

67. Ibid.. See also Scharf, Michael P., “Musical Chairs: The Dissolution of States and Membership in the United Nations” (1995) 28 Cornell I.LJ. 29,67.Google Scholar

68. See S.C.Res.777 of 19 Sept. 1992 (holding that “the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist” and that the new Yugoslavia “cannot continue automatically the [UN] membership”). See, however, criticisms of “inconsistencies” levelled in Yehuda Z. Blum, “UN Membership of the ‘New’ Yugoslavia: Continuity or Break” (1992) 81 A J.I.L. 830 et seq.

69. See Note, “Taking Reichs Seriously: German Unification and the Law of State Succession” (1990) 104 Harv.L.Rev.588,597 (and references therein).

70. See O'Connell (1970), op. cit. supra n.30, at pp. 193–194 (citing in support diplomatic practice, judicial decisions and text writings).Google Scholar

71. Also identified as a “possible type of dispositive treaties” are “capitulations according consular and judicial rights”. See O'Connell, Daniel P., The Law of State Succession (1956), p.50.Google Scholar

72. Art.11.

73. Art.12

74. The principle refers to the intangibility of frontiers and was originally applied in respect of frontiers inherited from colonisation. It is now considered a principle of customary law of general application.

75. See e.g. Frontier Dispute Case (Burkina Faso v. Republic of Mali) I.C.J. Rep. 1986,554 (holding uti possedetis a general principle, aimed at preventing the independence and stability of new States from being endangered by fratricidal struggles provoked by the challenging of frontiers); Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras; Nicaragua intervening) l.C J. Rep. 1992,355 (neither effective display of State functions in disputed areas nor the economic inequality generated by old boundaries was sufficient to displace the uti possedetis principle); Case Concerning the Territorial Dispute (Libya v. Chad) I.C.J.Rep. 1995, 6 (there was a “fundamental principle of stability of boundaries” and, accordingly, the terms of a treaty agreeing a boundary will be upheld as far as possible).

76. See EC Arbitration Commission of Yugoslavia (1993) 921.L.R. 162 (the uti possedetis principle also applies to newly independent States formerly part of a federation; hence, the old federal boundaries of Yugoslavian States are held to form the frontiers of the new States that emerged in its wake; consequently, any action designed to alter unilaterally the old federal boundaries of Yugoslavia will be unlawful).

77. See e.g. the 1977 Permanent Neutrality and Operation of Panama Canal Treaty between Panama and the US, whereby the Canal is to remain open to the peaceful transit by vessels of all nations.

78. See the Aaland Islands case (1920) League of Nations O J., Special Supp. No.3 (concerning an agreement made in 1856 between Russia, France and Britain under which Russia agreed not to fortify islands lying near Stockholm in the Baltic. In 1918 the islands became part of Finland, which began fortifying them. Sweden, which was not a party to the agreement, lodged a complaint with the League of Nations. A Committee of Jurists held that Sweden could rely on the 1856 treaty since Finland had succeeded to Russia's obligations; the treaty was designed to preserve the balance of power; therefore, all “interested States” could invoke it).

79. See O'Connell, , op. tit. supra n.71 at p.135.Google Scholar

80. See Mullerson, , op. tit. supra n.37 at p.489.Google Scholar

81. See idem, pp.490–491.

82. Such as the 1949 Geneva Conventions I–IV on the Protection of Victims of Armed Conflicts and the 1977 Geneva Protocols I, II.

83. See Fausto Pocar, “Enhancing the Universal Application of Human Rights Standards and Instruments”, UN Doc.A/CONF.157/PC/60/Add.4 of 8 Apr. 1993 (stating that “human rights treaties devolve with the territory”); see also Nihal Jayawickrama, “Human Rights in Hong Kong: The Continued Applicability of the International Covenants” (1995) H.K.L.J. 171, 176–177 (contending that a new rule of international succession law has been established whereby: “Once it is formally acknowledged by multilateral treaty that the inhabitants of a particular territorial unit are entitled to enjoy certain defined rights and freedoms, that enjoyment cannot be interrupted, suspended, or terminated by reason of new arrangements that may be made in relation to the governance of that territory”).

84. See UN ECOSOC, Commission on Human Rights, Succession of States in Respect of International Human Rights Treaties. Report of the Secretary-General, E/CN.4/1995/80 (28 Nov. 1994) (citing a statement by the Human Rights Committee at its 47th session, Mar./Apr. 1993).

85. See supra nn.52 and 53.

86. See Mullerson, , op. cit. supra n.37, at p.492.Google Scholar

87. “Security”, though still an elusive concept, is no longer defined in terms of defence from invading armies or missiles but embraces all factors (including migration, ecology and environment) which threaten the vitality and sustainability of a country's core values and institutions. See Jessica Tuchman Mathews, “Redefining Security” (1989) 68 Foreign Affairs 2; Simon Dalby, “Security, Modernity, Ecology: The Dilemmas of Post-Cold War Security Discourse” (1992) 17 Alternatives 95.

88. It is China's contention that no transfer of sovereignty is taking place since it merely “resumes” the exercise of sovereignty over Hong Kong. At the other extreme, it has been suggested that “since the Joint Declaration does not provide for complete responsibility by China for the international relations of Hong Kong, but rather provides for a transfer of sovereignty over Hong Kong without a complete transfer of autonomy, what will occur is a limited incorporation of the sovereign powers of the territory of Hong Kong into China. Such incorporation should more properly be characterized as ‘accession’, rather than ‘succession’, because China will come into possession of only some of the sovereign rights of the incorporated state”. Shawn B. Jensen, “International Agreements Between the United states adn Hong Kong Under the United States– Kong Policy Act” (1993) 7 Temple I.C.L.J. 167, 180, n.76.

89. See 1978 Succession Convention, Art.2(l)(b); although the “codificatory” nature of the Convention is limited—see supra nn.2–14 and accompanying text—its definition of State succession is “widely accepted by commentators as the best available”: see Volkovitch, , op. cit. supra n.14, at p.2164, n.1.Google Scholar

90. See Section 4, “Explanatory Notes”, A Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China (26 Sept. 1984), p.35 (“in relation to foreign and defence affairs, which are now the overall responsibility of Her Majesty's Government, and will with effect from 1 July 1997 become the overall responsibility of the Central People's Government of the People's Republic of China” (emphasis added)).Google Scholar

91. Michael, Akehurst, A Modern Introduction to International Law (1987), p.159.Google Scholar

92. See generally op. cit. supra n.69, at pp.598–599Google Scholar (asserting that the rules of State succession reflect underlying conflicts between competing values—continuity and autonomy— and that they do not resolve but, rather, manage these conflicts by balancing irreconcilable policies).

93. Or, at least, considerably qualified; see Robert, Jennings and Arthur, Watts (Eds), Oppenheim's International Law (9th edn, 1992), pp.228–230Google Scholar (highlighting among the main exceptions “locally connected” treaties; treaties “specifically made for/specifically extended to the territory by the former parent state”; and emphasising extensive State practice of continuity and devolution agreements).

94. See comment supra n.8.

95. See 1978 Succession Convention, Art.15: “When part of the territory of a State … becomes part of the territory of another State.… (a) treaties of the predecessor State cease to be in force in respect of the territory to which the succession of States relates from the date of the succession of States; and (b) treaties of the successor State are in force in respect of the territory to which the succession of States relates from the date of the succession of States, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation”. For a discussion of the theory of “moving treaty boundaries see” O'Connell, , op. cit supra n.40, at p.25.Google Scholar

96. See Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Future of Hong Kong (26 Sept. 1984), repr. in (1984) 23 I.L.M. 1366 (hereafter Joint Declaration), Annex I, s.XI.

97. For a detailed discussion see Roda Mushkat, One Country, Two International Legal Personalities: The Case of Hong Kong (Hong Kong: Hong Kong University Press, 1996, Chap.l) (Hong Kong's case for international legal personality is founded on its factual “stately” attributes (permanent population, distinct territory and effective government); the international recognition extended to it as an autonomous entity; a substantiated claim to “international legitimacy” (by virtue of adherence to international norms—rule of law, democratic principles, protection of universally recognised human rights and fundamental freedoms); an international legal entitlement (right to self-determination); membership of the “international civil society” (international organisations and associations); as well as.sui generis qualities.Google Scholar

98. The term “implemented” ought to be given a broad construction in light of the Joint Declaration's overall object and purpose (i.e. the “maintenance of the prosperity and stability of Hong Kong”—Preamble) and in accordance with the “presumption of continuity” (as elaborated in the first part of this article). The term may nonetheless indicate an intention that existing reservations made (by Britain) in respect of the territory would be maintained.

99. Joint Declaration, Annex I, s.XI.

100. Ibid.

101. idem, s.IX.

102. Ibid. In fact, not only will the HKSAR succeed to aviation-related rights currently enjoyed by Hong Kong, but it may also assume additional international responsibilities with respect to the management of civil aviation. These responsibilities include the negotiation and conclusion of new air services agreements (ASAs).

103. idem, s.XIII.

104. As a general rule (reflected in Art.34, Convention on the Law of Treaties) a treaty does not create obligations or rights for a third State without its consent (paaa teniis nee nocentnecprosunt). Note, however, that where a treaty codifies customary international law, third States would be bound by that law. Third-party interests (or, rather, the interests of the whole community of States) are also recognised in the rule (incorporated in Art.53 of the Convention) that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens).

105. See 1978 Succession Convention, Art.8: “The obligations or rights of a predecessor State under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State towards other States parties to those treaties by reason only of the fact that the predecessor State and the successor State have concluded an agreement providing that such obligations or rights shall devolve upon the successor State” (emphasis added).

106. See Jennings, and Watts, , op. cit. supra n.93, at p.231, n.20 (citing the ILC's review of State practice).Google Scholar

107. See discussion earlier in this article. See also Chinkin, , op. cit. supra n.32, at p.2 (putting forward the thesis that “bilateralism is no longer appropriate as the paradigm model for the regulation of activities in the international arena”).Google Scholar

108. It may be interesting to note the formal acceptance of the Hong Kong succession formula as expressed in the US—Hong Kong Policy Act 1992, repr. in (1993) 321.L.M. 545 (providing that the US should continue to fulfil its obligations to Hong Kong under international agreements, whether or not China is also a party to those agreements).

109. See Martin, Dixon, Textbook on International Law (1990), p.61Google Scholar (suggesting as an example that “it will not be open to any state to claim that the UK is still the legitimate sovereign of Hong Kong after the treaty of cession with China takes effect in 1997”).

110. Instrumentally, “notes” from the British and Chinese governments, enclosing a “list of agreed multilateral treaties”, are to be communicated to the UN Secretary General. Concurrently, the depositaries of the respective treaties will be informed of the continued application beyond 1997 and allowed a reasonable period for objection.

111. As suggested in this article, the latter move is commonly expected given the peculiarities of membership of international organisations. A case in point (involving, in fact, both membership of an international organisation as well as continued application of the organisation's conventions) is Hong Kong's affiliation with the ILO. Specifically, account had to be taken of the fact that the operation of the ILO conventions in Hong Kong had been by virtue of its status as a "Non-Metropolitan Territory" (NMT) of the UK and that after 1997 HKSAR would not be deemed to be an NMT. The “solution” adopted took the form of a “communication” from the British government and a “declaration” by the Chinese govern ment, addressed to the General Secretary of the ILO to the effect that for the purpose of enabling the HKSAR to continue its participation in ILO activities and to continue to have ILO conventions applied to it, the relevant articles of the ILO Constitution will be applied “by analogy” to the HKSAR. See International Labour Office, “Communications from the Government of the United Kingdom of Great Britain and Northern Ireland and the People's Republic of China to the Director-General of the ILO” (1990) 73 Official Bull. 25. The ILO “analogous format” is expected to be used in relation to other international organisations. See, however, the reservations expressed in Shin-ichi Ago, “Application of ILO Conven tions to Hong Kong After 1997” (1994) 17 Dalhousie LJ. 612.

112. See Achievements of the Joint Liaison Group and its Sub-Croup on International Rights and Obligations, 1985-May 1990 (Hong Kong: Government Printer, 1990); agree ment for continued participation in three additional organisations was secured since 1990. For the position in respect of specific organisations as of 31 Mar. 1996 see United States Hong Kong Policy Act Report (1 Apr. 1996), pp.24–26.Google Scholar

113. Hong Kong became a separate contracting party to GATT in 1986. See Accession of Hong Kong, Succession, GATT Doc.L/5976 (21 Apr. 1986), repr. in GATT: Basic Instru ments and Selected Documents, Vol.4, 34th Supp. (1988), p.27Google Scholar. GATT was “transformed” into the World Trade Organization on 1 Jan. 1995. It may be noted that the significance of “succession” as distinct from application for a new membership of the WTO is well illus trated in respect of China's claim to “resuming” membership once held by China under Kuomintang leadership. See Vagts, , op. cit. supra n.8, at pp.293–294.Google Scholar

114. See Constitutional Affairs Branch, “List of Agreed Multilateral Treaties” (10 Oct. 1996). See also Joint Liaison Group, Joint Communiqué, 35th Meeting (6,7, 9 Feb. 1996), announcing that the parties “reached an agreement in principle on the mechanism for giving legal form to all the agreements on international rights and obligations reached so far by the IRO [International Rights and Obligations] Sub-Group”. Both documents are on file, “Treaty Project Archives”, Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong.

115. See supra nn.44–46 and accompanying text

116. Including agreements that create international organisations in whose activities Hong Kong participates.

117. Facts relevant to such a determination include the retaining of land mass, population, resources and, notably, the legal order.

118. See Joint Declaration, Art.3(3): “The laws currently in force in Hong Kong will remain basically unchanged”. Annex I, s.II: “After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained”.

119. See O'Connell, (1970), op. cit. supra n.30, at p.190 (discussing the “factor of inertia in state succession practice”).Google Scholar

120. See supra nn.48,60.

121. Joint Declaration, Art.3(l).

122. See Vagts, , op. cit. supra n.8, at p.290.Google Scholar

123. Ibid (suggesting as an example that “a new state repudiating its predecessor's adherence to the Genocide Convention would raise questions about its intentions to violate the prohibitions against mass murder”).

124. See Karol, Wolfke, Custom in Present International Law (1993), p.162.Google Scholar

125. See generally “List of Agreed Multilateral Treaties”, supra n.114.Google Scholar

126. It may be noted, however, that diplomatic status extended to certain international bodies (e.g. the International Committee of the Red Cross and the UN High Commissioner for Refugees) is governed by bilateral treaties with Britain which expire on 30 June 1997.

127. Note in this connection China's general reluctance to submit to third-party adjudication in the settlement of international disputes.

128. It is an “established rule” that customary international law is incorporated into English law automatically and constitutes part of the law of the land (unless in conflict with an Act of Parliament). See Jennings, and Watts, , op. cit. supra n.93, at pp.56–57. The common law applicable in Hong Kong (and for that matter local legislation incorporating inter nationallaw) will remain in force in accordance with Art.3(3) of the Joint Declaration.Google Scholar

129. Supra n.114. Contained in the list are the four 1949 Geneva Conventions, the 1968 Treaty on the NonProliferation of Nuclear Weapons and the 1972 Convention on the Pro hibition of the Development. Production and Stockpiling of Bacteriological (biological) and Toxin Weapons and for their Destruction.

130. The 1925 Protocol on the Prohibition of Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare; 1930 Treaty for the Limitation and Reduction of Naval Armament: and the 1977 Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques.

131. Currently extended to Hong Kong are the 1954 Convention on the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness as well as the 1930 Protocol on Certain Cases of Statelessness and 1930 Special Protocol Concerning Statelessness. China is not a party to these treaties. The pertinence of the “Stateless Conventions” in the local refugee context has recently been highlighted in relation to difficulties of repatriating asylum-seekers considered “non-nationals” by Vietnam.

132. The Convention incorporates, inter alia, one of the fundamental principles of refugee law, namely non-refoulement, or the obligation not to expel or return (refouler) a refugee in any manner whatsoever to the frontier of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; not to expel, return or extradite a person to another State where there are substantial grounds for believing that he or she will be in danger of being subjected to torture; and not to expel a Stateless person lawfully staying in the territory except on grounds of national security or public order.

133. See Report of the Australian Branch to the International Law Association Committee on International Law in National Courts, repr. in (1994) Aust. Y.I.L. 231,234–237.

134. (1948) 15 I.L.R. 147,169.

135. Note that under Art.38(d) of the ICI Statute (the “sources of international law”), “judicial decisions and the teachings of the most highly qualified publicists of the various nations” are to be applied as “subsidiary means for the determination of rules of law”.

136. E.g. treaties appertaining to merchant shipping (1910 International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea; 1952 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation); treaties concluded by the Hague Conference on Private International Law (1970 Convention on the Recognition of Divorces and Legal Separations; 1985 Convention on the Law Applicable to Trusts and on their Recognition).

137. The 1969 Convention on Civil Liability for Oil Pollution Damage (and its 1976 Protocol): 1969 Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (and its 1973 Protocol); 1971 International Convention for the Establishment of the International Fund for Compensation for Oil Pollution Damage (and its 1976 Protocol); 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (and 1978 amendments and 1980 Protocol Amending the 1972 Convention); 1973 Convention for the Protection of Pollution from Ships (and its 1978 Protocol). Note, however, that the 1958 Law of the Sea Conventions (Convention on the High Seas; Convention on the Territorial Sea and Contiguous Zone; Convention on Fishing and Conservation of the Living Resources of the High Seas; Convention on the Continental Shelf) have not been included in the “List of Agreed Multilateral Treaties”, supra n.l 14. Note also that China has signed and ratified the 1982 UN Convention on the Law of the Sea, which offers a signifi cantly more comprehensive regime of marine environment protection.

138. The 1985 Convention for the Protection of the Ozone Layer; 1987 Protocol on Substances that Deplete the Ozone Layer (and its 1990 and 1992 amendments).

139. The 1956 Plant Protection Agreement for the South East Asia & Pacific Region (and 1967 amendment); 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (and 1979 amendment); 1979 Convention on the Conservation of Migratory Species of Wild Animals; 1946 International Convention for the Regulation of Whaling (and its 1956 Protocol).

140. 1971 (Ramsar) Convention on Wetlands of International Importance Especially as Waterfowl Habitat; 1972 Convention for the Protection of the World Cultural and Natural Heritage; 1988 Convention on the Regulation of Antarctic Mineral Resource Activities.

141. The 1989 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

142. The 1967 Treaty on the Principles Governing Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space; 1972 Convention on International Liability for Damage Caused by Space Objects; 1974 Convention on Registration of Objects Launched into Outer Space.

143. The 1960 Convention on Third Party Liability in the Field of Nuclear Energy (and its 1964 Protocol).

144. E.g. the rule pertaining to the responsibility of States to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction; the “precautionary principle”, which aims at ensuring that activities posing a threat to the environment will be prevented, even if there is no conclusive scientific proof linking them to environmental damage; the “polluter pays principle”, whereby those who burden or harm the environment are required to bear the costs of avoiding, eliminating or compensating for those injuries; the undertaking of environ mental impact assessments for proposed activities that are likely to have a significant adverse impact on the environment.

145. Notable “soft” international environmental instruments are the three major documents adopted unanimously at the 1992 “Earth Summit” (the Rio Declaration on Environment and Development, Agenda 21 and the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus in the Management, Conservation and Sustainable Development of All Types of Forests).

146. China signed and ratified the 1992 Framework Convention on Climate Change and the 1992 Convention on Biological Diversity.

147. See O'Connell, , op. tit. supra n.40, at p.212.Google Scholar

148. See Constitutional Affairs Branch Joint Liaison Group: Achievements in the Past Ten Years (Nov. 1995) (on file, “Treaty Project Archives”, supra n.l 14). Note also the agreement reached in the JLG on the conclusion of a network of bilateral investment promotion and protection agreements (as part of “strengthening the economic infrastructure and institutions”) as well as the arrangements made for “separating air services agreements from those signed by the UK which also cover Hong Kong, and concluding agreements with new aviation partners”): Ibid.

149. See Vagts, , op. tit. supra n.8, at p.291.Google Scholar

150. Note the inapplicability to legal cases between Hong Kong and China of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (emphasis added).