試論《中英聯合聲明》的法律效力

On the Legal Status of Sino-British Joint Declaration

《中英聯合聲明》在法律性質上屬於雙邊條約，受條約法規範，但同時又是一個特殊的條約，其部分條文屬於當事國的單方面聲明。《中英聯合聲明》第3條及附件一在性質上屬于中國的單方面聲明，以公開方式作出，明確表達了中國受其約束的主觀意圖，構成中國的國際義務。中國在中英談判過程中一再申明反對英國對回歸中國後的香港享有任何權利，《中英聯合聲明》整體、包括第3條及附件一都沒有賦予英國任何權利。《中英聯合聲明》至今整體上仍然有效，但該聲明各個條文有效性的時長有所不同，不宜以部分條文效力已經終止為由而否認整個聲明的繼續有效性。在與英國權利義務有關的條文實際上不再產生效力的情況下，主張聲明中這部分條文已經終止效力，則是對法律事實的準確描述。

"The Sino-British Joint Declaration is a bilateral treaty by nature and is regulated by law of treaties. But it is also a special treaty as some of its clauses are unilateral declarations. Article 3 and Annex I of the Declaration are China’s unilateral declarations. As Article 3 and Annex I were made in public and China expressed its intention clearly to be bound by them, they constitute China’s international obligations. In the course of negotiation between China and the UK, China unequivocally expressed its objection to granting the UK any right over Hong Kong after its return to China. The Declaration as a whole, including Article 3 and Annex I, does not confer any right to the UK. Overall speaking, the Declaration is still valid today. The duration of validity of each clause of the Declaration is different. It may be inappropriate to claim that the whole Declaration has lost its validity since the obligations under some provisions have been performed. While the provisions in the Declaration relating to the UK’s rights and obligations have been fully fulfilled, it may be an accurate description that these provisions have ceased to have effects."