Application To The Special Administrative Region Of The International Agreements

Upholding national unity and territorial integrity,maintaining the prosperity andstability of Hong Kong and Macau, the People’s Republic of China(PRC) resumesthe exercise of sovereignty over Hong Kong and Macau and implements‘one country,two systems’. According to the provisions of the Hong Kong (Macau) Basic Law, theapplication to the Special Administrative Region（SAR）of international agreementsthat concluded by the PRC shall be decided by the Central People’s Government.International agreements to which the PRC is not a party but which are implementedin the SAR may continue to be implemented in the SAR. By the authorization, theSAR may, using the ‘Hong Kong,china’or‘Macau,china’,conclude and implementagreements with foreign states and regions. This is a new practice in the internationallaw.This thesis includes five chapters except the introduction and the conclusion.The main contents are as follows:The introduction explains the definition of the title of this thesis, thesignificance and the thinking-way of the research，as well as the characteristics andthe innovations of this thesis. There are two important points. Firstly, it points outthat the SAR is not a subject of international law.The sovereignty and governingpower of the SAR belongs to the centre government of the PRC. Under the traditional definition, only states were subjects of international law; that is, onlystates were deemed to have rights and obligations that international law recognized.An entity which is not a‘state’and not‘sovereign’ but possessing‘a high degree ofautonomy’is not a subject of international law.The SAR enjoys the legal capacity toenter into international agreements relations, which governed by international lawand the Basic Law. Secondly，the policy of‘one contry,two systems’is the principle toapplication to the SAR of international agreements.ChapterⅠmainly studies the basic theory of the application to the SAR ofinternational agreements to which the PRC is or becomes a party. Firstly，it points outthat the application to the SAR of international agreements is to solve the question leftby history,which innovates in the theory of the succession of treaties. Theapplication to the SAR of international agreements is based on the basic theory ofinternational law, the applicable scope of the international agreements and therelevant provisions of the Basic Law as well as the notification of the PRC. As far asthe way of application, generally the international agreements are transformed into thelocal laws to implement in Hong Kong SAR, but sometimes they are adopted intolocal laws. However, in Macau the international agreements usually are adopted intothe system of local laws, the domesticated agreement is the special way. For the effectof the international agreements in SAR, on the one hand, the agreements to which thePRC is a party shall be effect under the Basic Law, but super law of the locallegislation, on the other hand, the agreements to which the SAR alone becomes aparty shall be equal effect with the local legislation under the effect of the Basic Law.Secondly,the thesis thinks that the international agreements to which the PRC is aparty and which are implemented in SAR shall continue to be implemented.It leads tothe party changing to PRC and the conflict between the reservations by PRC and theprevious reservations by UK(Portugal), as well as the different applicable scopebecause of the different reservations. Using the1958Convention on the recognitionand enforcement of foreign arbitral awards as an example, the paper studies theapplication to the SAR of such agreements. Thirdly,the article expound the applicationto the SAR of international agreements to which the PRC is or becomes a party but which has not been implemented in SAR. The article points out that the application toSAR of the agreements,involving national defence and foreign affairs or having toapply in overall territory unit in according to the nature and the provisions of theagreements, shall be decided by the Centre Pepple’s Government(CPG). Theapplication of agreements to SAR shall be decided by the CPG after seeking the viewsof the government of the SAR, if they involve the affairs which are within the limitsof autonomy of SAR and not related with national defence and foreign affairs. Inaddition, the SAR shall offer to conclude or join into the agreements towards the CPG.The agreemens with the enforcement mechanism shall be achieved reports aboutimplementation by the CPG and the government of the SAR.Chapter Ⅱ gives a deep analysis on the approaches of application to SAR ofinternational agreements to which the PRC is not a party but which are implementedin SAR. Fistly, the signature has two different effects in different situations. Theconsent of a State to be bound by an agreement is expressed by the signature of itsrepresentative. If this consent is expressed by ratification, the signature is only aprocedure followed by ratification. In this situation, the State isn’t bound by thisagreement but performs the pre-agreement obligation. Secondly, this thesis gives acomprehensive analysis of the implementation about the International Covenant onCivil and Political Rights (ICCPR). In this thesis, the meanings and the effect ofarticle39of HK Basic Law are analyzed; it also points out that the expression of‘provisions as lawfully applied to HK’is the keywords to interpret this article. Therelation of the Basic Law, Covenant and the Immigration Ordinance is also studied,which sets forth that the Basic Law is the supreme law in the SAR and theImmigration Ordinance is only the ordinary domestic law to perform the ICCPR.Lastly, the effect to the SAR of the United Nations Convention on jurisdictionalimmunities of States and their property which does not ratify by the PRC is discussed.The thesis thinks that the Convention which is not in effect can not be bound to theparties. The restrictive immunity theory has not been formed international customarylaw rules, so it doesn’t apply in SAR. China holds the theory that countries and theirproperty enjoy absolute immunity and the SAR shall follow the sovereign state to implement absolute immunity theory.Chapter Ⅲ overall expounds the theory of the application to the SAR ofinternational agreements to which the PRC is not a party but which are implementedin SAR. The thesis holds that the application of these agreements is the transitionalarrangement, which brings to special legal relationship. The notification by the PRCto announce continual implementation of these agreements in SAR makes the PRCneither to the party nor a third State, but a special legal relationship between the PRCand the State accepted the notification. This relationship is in accord with theinternational law rules and accepted by international community. Using the1980Child Abduction Convention as an example, the paper studies the application to theSAR of such agreements.Chapter Ⅳ researches the legal capacity and the right to conclude theagreements and to participate in international organizations not limited to states.Firstly, the thesis discusses the nature and features on the right to conclude theagreements. It thinks that the right of SAR to conclude the agreements is componentof the right of a State to conclude the agreements, which is not an inherent right butconferred by the state. Whenever perform the right, it must be in accord with theBasic Law and controlled by the authority. Secondly, the paper explore the procedureissues that whether the SAR need to gain the specific authorizations from the CPGwhen it concludes the agreements and whether the agreements need to ratify by theCPG. The paper combs the practical experience to participate in the internationalorganizations and puts forward the principles to participate in organizations. Thirdly,it also researches the conflict and harmonization between bilateral agreements towhich the CPG is a party and to which the SAR is a party. Furthermore, it analyzesthe feasibility and specific model of application to the SAR of bilateral agreement towhich the PRC is a party with bilateral investment treaty (BIT) as example, whichcan be for reference by other bilateral agreements.Chapter Ⅴ extends to discuss the relationship between the mainland china andthe SAR under international multilateral agreements. On the one hand, theagreements to which the PRC is a party such as especially public law and uniform international conflict law could not to resolve the conflict between the mainlandchina and the SAR because the mainland china and the SAR are taken as a whole toapply the agreements. However, the uniform international substantive law has to acertain degree optional. If according to the provisions of the agreement, the partymay exclude the application of it or derogate from or vary the effect of any of itsprovisions, the agreement can be applied conditionally to settle the conflict betweenthe mainland china and the SAR by the choice. On the other hand, when the SARalone becomes party to international agreements, the mainland china and the SARare the special membership and the relationship between Centre Government andLocal Government. Under the policy of ‘one country, two systems’, it must givesplay to the initiative of the high degree of autonomy. The matter related to thenational interests must be done by uniform action, while the matter only related tothe local interests and not contravened the national interests may be decided by theSAR.