memorandum before you which refers not just to the content but to the form
and content of the text. One needs to examine this against the background
of exchanges between the two Governments in the context of the Joint
Declaration and China's responsibility for adopting the Basic Law.
Whenever one is looking at an agreement or what someone may allege to be an
agreement, whether as a matter of domestic contract law or a matter of
international treaty law, one has to in a sense stand back and look at it
reasonably in the context of the exchanges between the parties. China and
Britain have entered into an international treaty called the Joint
Declaration which both sides have registered at the United Nations. That
creates certain obligations both for Britain and for China. Against the
background of express treaties registered at the United Nations one would
need to find strong language in my view in an exchange of letters in order
to reach the view that they could amount to a treaty under international
law and I find in this Exchange of Letters nothing, quite apart from the
issue of the failure of the meeting of minds, to suggest that it comes
close to constituting a treaty.
101.
Dr Slinn?
(Dr Slinn) I really have very little to add to what Mr Duffy has just
said. If you look at the language of these exchanges you do not find any
evidence of intention to undertake binding obligations in international
law.
(Mr Keller)
Can I just add one short comment to that? Of course
the context is very important. If you look at an agreement to transfer a
community like Hong Kong made in 1984 through one agreement giving a 12-
year period of co-operation you must expect during that period that there
would be many additional informal binding agreements on how that was to be
accomplished carried out in different ways. I think context cannot be seen
simply one way. It is arguable the other and to my mind that is the more
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