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MP Richard Ottaway says the NPC ruling on the 2017 elections may have breached the 1984 Joint Declaration. Photo: SCMP Pictures

British MPs' inquiry into Hong Kong's post-handover affairs 'does not breach law'

British MPs are not breaching the law by inquiring into Hong Kong's post-handover affairs, so long as they do not try to visit the former colony against China's wishes, a British lawyer has said.

London parliamentarians are not in breach of international law by inquiring into Hong Kong's post-handover affairs, so long as they do not try to visit the former British colony if China does not welcome them, a leading British lawyer appointed by a local legal think tank says.

China, on the other hand, was wrong to claim the 1984 Sino-British Joint Declaration had become "void" after the 1997 handover, since neither Beijing nor London had terminated the bilateral agreement, Michael Wood said.

The conclusions of Wood, the most senior legal adviser at Britain's Foreign Office until 2006, were released by the Basic Law Institute yesterday after reports in November that a Chinese envoy had told a British member of Parliament the declaration "is now void and covered only the period from the signing in 1984 until the handover in 1997".

China's deputy ambassador to Britain, Ni Jian, was responding to Richard Ottaway, chairman of the parliamentary Foreign Affairs Committee, whose members were planning a Hong Kong trip to examine the implementation of the declaration and, specifically, the city's progress on political reform.

Wood wrote: "For the [committee] to hold an inquiry such as the present one does per se not involve any breach of international law."

Britain "does have the right to take such steps as are open to it to ascertain whether the application of the Basic Law is indeed being upheld".

But such steps "may not … interfere in the internal affairs of Hong Kong" or of China.

Beijing denied visas to the delegation over fears that it might send the "wrong signals" to protesters at the height of the Occupy Central campaign.

Wood said those MPs did not have a right to enter Hong Kong, nor were the Hong Kong or Chinese governments forbidden under international law to deny them entry.

But the declaration was in no way spent after the Basic Law began to apply, nor was London's remaining role merely to ensure the mini-constitution stayed in effect until 2047.

To make such claims was "an unduly restrictive and formalistic interpretation" of the declaration, said Wood, a barrister and a member of the UN International Law Commission.

"The fact that the Joint Declaration was registered with the UN Secretariat … while not conclusive, is further evidence of the parties' intention that it be a legally binding international agreement."

Institute chairman Alan Hoo said Wood agreed that Britain might be required to disclose documents if ambiguity arose in the meaning of the declaration or the Basic Law when, for instance, constitutional cases came up in Hong Kong courts.

On a separate issue, Hoo urged Hongkongers to accept national security legislation in line with Article 23 of the Basic Law because it was agreeable even to the British before the handover.

It was a question of accepting either Article 23 - which sparked a half-million-strong protest in 2003 - or the mainland's tough security laws, Hoo said.

"When Macau got [Article 23], I felt sorry for Hong Kong," the Basic Law expert said.

This article appeared in the South China Morning Post print edition as: British MPs' HK checks 'legally above board'
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