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30 JAN 2021

Observations of the HKSAR Secretary for Justice on the ‘BN(O) Visa’ Issue – From the Perspective of the Joint Declaration and the British Memorandum

The United Kingdom (UK) government announced the opening of a new visa for Hong Kong British National (Overseas) [BN(O)] status holders. A correct comprehension of the Sino-British Joint Declaration (Joint Declaration) will allow one to understand that there is no single clause which provides for British rights or obligations to Hong Kong after the city’s reunification with the Motherland.

On July 12, 1983, the Central People’s Government (CPG) proposed 12 Principles to resolve the issue of Hong Kong, which later became part of the Joint Declaration. On December 19, 1984, the Joint Declaration which reflected the basic principles and policy of ‘One Country, Two Systems’ was concluded.

The Joint Declaration is a treaty made between China and the UK. The provisions of the Joint Declaration, including its three annexes, have been deposited with the United Nations. While the latter part of the preamble of the Joint Declaration states that the two sides ‘agreed to declare as follows’, the crucial parts of Articles 1, 2 and 3 (read with Annex I) are all unilateral declarations made by one side without any reference to the other side. Articles 4, 5 and 6 and Annexes 2 and 3 provide for arrangements during the transitional period, while Articles 7 and 8 are about the implementation and entry into force of the instrument.

From the above observations on the content and nature of the Joint Declaration, it can be seen that there is no clause that provides for British rights or obligations to Hong Kong after the city’s reunification with the Motherland. Judge Xue Hanqin, Vice President of the International Court of Justice, pointed out at the Basic Law 30th Anniversary Legal Summit on November 17, 2020 that, ‘after the reunification, the system to be adopted in the Hong Kong Special Administrative Region (HKSAR), as well as how to implement its reunification with the Motherland, was purely within the ambit of the sovereignty of China from an international law perspective’. In a speech by Mr Xie Feng, former Commissioner of the Ministry of Foreign Affairs of China in HKSAR, he also stated, ‘[a]ll legal relations between the UK and Hong Kong created by the instrument had terminated by January 1, 2000 at the latest, when the Sino-British Joint Liaison Group ceased operation. The UK is not entitled to claim any new rights over or obligations to Hong Kong by citing the Joint Declaration. To be brief, the UK has no sovereignty, jurisdiction or right of ‘supervision’ over Hong Kong whatsoever after the latter returned to China’.

The signing of the Joint Declaration marks the final resolution of the Hong Kong question, setting a laudable example on peaceful resolution of historical issues and marking a significant milestone for the reunification of China. As remarked by Judge Shi Jiuyong, former President of the International Court of Justice, the Joint Declaration ‘is an unprecedented treatment of invalidity of unequal treaties imposed by big powers in history. This practice can be counted as China’s contribution in the process of progressive development of contemporary international law’.

At the signing of the Joint Declaration, there was also an immediate exchange of memoranda between the two sides dealing with the issue of nationality. This exchange of memoranda between the two sides represent each side’s understanding of the issue of nationality under the backdrop of the Joint Declaration.

The British Memorandum to the PRC (the British Memorandum) opened with the statement ‘[i]n connection with the Joint Declaration… to be signed this day, the Government of the [UK] declares that…’, and stated the UK government’s pledge, inter alia, not to confer the right of abode in the UK on holders of the BN(O) passport who are Chinese nationals in Hong Kong. Similarly, the Chinese Memorandum to the UK opens with acknowledging receipt of the British Memorandum, stating ‘[t]he Government of the [PRC] has received the memorandum from the Government of the [UK]…’, going on to assert that, inter alia, ‘[u]nder the Nationality Law of the [PRC], all Hong Kong Chinese compatriots… are Chinese nationals’, and then makes the commitment to ‘permit Chinese nationals in Hong Kong who were previously called “British Dependent Territories Citizens” to use travel documents issued by the government of the UK for the purpose of travelling to other states and regions’.

A pertinent question would be the nature and legal effect of the memoranda in question, in particular the UK government’s pledge as contained in the British Memorandum regarding the conferral of the right of abode to BN(O) passport holders who are Chinese nationals in Hong Kong. This would depend on whether it could give rise to a binding effect as a unilateral act under international law.

According to the International Law Commission’s ‘Guiding principles applicable to unilateral declarations of States capable of creating legal obligations’ (Guiding Principles), declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations, taking into account their content, the factual circumstances in which they were made, and of the reactions to which they gave rise. In the Nuclear Tests case, the International Court of Justice also held that a unilateral declaration is binding when the State proclaiming it intends to undertake a legal obligation.

It is noteworthy that the UK also considered the provisions contained in the British Memorandum to be of binding effect. For example, in 1985, at the second reading of the Hong Kong Bill in the UK House of Commons, the then Secretary of State for Foreign and Commonwealth Affairs, Sir Geoffrey Howe, remarked that the proposed powers to make the amendments to the then nationality legislation are ‘necessary as a result of the [Joint Declaration] and the [British Memorandum]’. Additionally, in his 2008 Review of Citizenship, former Attorney General for England and Wales, Lord Goldsmith, recognised that to give BN(O)s full British citizenship automatically would be a breach of the commitments made between the PRC and the UK in the Joint Declaration, noting: ‘The only option… would be to offer existing BN(O) holders the right to gain full British citizenship… However I am advised that this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong…’.

In line with China’s countermeasures against the British government’s handling of issues related to BN(O) passport, the HKSAR Government has announced the non-recognition of the BN(O) passport as a valid travel document and proof of identity. With effect from tomorrow, BN(O) passports cannot be used for immigration clearance and will not be recognised as any form of proof of identity in Hong Kong.

Source: Department of Justice, The Government of the Hong Kong SAR