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"any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions."
As I have said, the Joint Declaration is an international treaty, and the JLG agreement is a subsequent agreement between the parties to that declaration. Those parties, Britain and China, clearly interpret the Joint Declaration in a way that permits the 4 plus I composition.
As I have said, the Vienna Convention applies to the Joint Declaration which provides in Section III of Annex 1 for the establishment of the CFA. Article 82 of the Basic Law is virtually identical to that provision in the Joint Declaration. It sets out the same general principle about the composition of the court, leaving the precise scope of the power to invite overscas judges to be defined by implementing legislation. Article 82 of the Basic Law was designed to implement the provision in the Joint Declaration, and it should therefore be interpreted in the same way.
Conclusion
The assertion that the JLG agreement is in breach of the Joint Declaration and the Basic Law is therefore not correct. As the motion before this Council suggests, it is perfectly possible to establish the Court of Final Appeal in alignment with the Joint Declaration and Basic Law and in general conformity with the JLG agreement of September 1991. In fact, the establishment of the court must be achieved in this manner in order for the Court to be able to survive the transfer of sovereignty.
The proposal to amend the Letters Patent
The Hon Simon Ip has proposed that, prior to the enactment of the CFA Bill, the Government should consider seeking the incorporation of a provision in the Letters Patent containing the relevant wording of Article 82 of the Basic Law. I have to advise Members that there is no merit in this proposal.
As a matter of law, there is no need to amend the Letters Patent in order for the CFA Bill to be enacted in Hong Kong. This legislature already has the necessary power. The only purpose of the proposal is, as Mr Ip has explained, so that the Bill, if enacted, would be subject to the new provision in the Letters Patent. This would provide an opportunity for a challenge to be made in our courts in respect of the constitutionality of the 4 plus I composition of the court set out in the legislation.