General Customary law and the Hong Kong Courts.doc

8/14/2019 General Customary law and the Hong Kong Courts.doc

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General Customary Law and the Hong Kong Courts

The doctrine of incorporation is that, according to Ian Brownlie,

customary rules are to be considered part of the law of the land

and enforced as such, with the ualification that they are

incorporated only so far as is not inconsistent with !cts of

"arliament or prior #udicial decisions of final authority$% &th

edition, Principles of Public International Law p'()' The better

*iew is that the rule of stare decisis does not apply if a pre*ious

decision rested upon an obsolete rule of international law +p'(-'

There is some theoretical contro*ersy around the grounds or

foundation for international law being part of the law of a

common law #urisdiction' The doctrine of transformation would

mean that international law only becomes part of the local law if

it is e.pressly accepted and adopted by the courts' Brownlie

uotes Lord !t/in in the "ri*y Council case in*ol*ing Hong

Kong, Chung Chi Cheung v. The King. Howe*er, what the #udge

actually says shows that the distinction between incorporation

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rearrested, charged with murder (in the waters of this Colony,( and

eventually convicted and sentenced to death"

)n appeal, the *rivy Council held, that the local British Court had

jurisdiction to try the appellant" + public ship in foreign waters is not,

and is not treated as, territory of her own nation" The immunities

which the domestic courts, in accordance with conventions of

international law, accord to the ship, its crew and its contents, do not

depend on an objective e%territoriality, but on implication of the

domestic law, and are conditional and can be waived by the nation to

which the public ship belongs" The Chinese overnment not in fact

having made, as they could have done, a diplomatic re&uest for the

surrender of the appellant, and having subse&uently permitted

members in their service to give evidence before the British Court in

aid of the prosecution, plainly consented to that court e%ercising

jurisdiction, which jurisdiction was accordingly validly e%ercised"

It has been said a certain ner*ousness 0e.ists3 on the part of

;nglish #udges as to the constitutional implications of 0their use of

CIL3$ +Humphrey


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International Law$ ++)14- )84 Recueil des Cours =, )2&-'

!pplied carelessly, incorporation of CIL could gi*e the ;nglish

#udges alarmingly broad powers' ;nglish #udges combat this by

ascertaining the current state of CIL as forensically as possible,

instead of trying to de*elop or ad*ance CIL, which is the role of

the international community, including the ;.ecuti*e +Jones v

Ministry of Interior of Kingdo of !audi "rabia 088&3 ) !C &8

+Jones$-, 16' The issue here was whether a >audi go*ernment

official could be sued in ;nglish courts for ha*ing tortured a ?K

citi@en' International law granted immunity'

! *ery important recent case before the Hong Kong Court of

!ppeal is C# "K# KM$# %K# &$ and 'a against (irector of

Iigration and !ecretary for !ecurity C!CA)27886 to

C!CA)2&7886'

http%77legalref'#udiciary'go*'h/7lrs7common7search7searchresult

detailframe'#sp9I>:&&(2&DE>:FBDT":?

The issue is that Hong Kong does not ha*e legislation regulating

the uestion of refugees' It did ha*e special pro*isions for dealing

with the uestion of Aietnamese refugees in the )1&8s , but this

.
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was not generali@ed to include the acceptance of the )1=)

efugees Con*ention' It had a policy of not repatriating persons

who claimed refugee or asylum status and relied upon the The

HC ffice in Hong Kong to assist in screening' Howe*er, this

was a matter of discretion' The claimants tried to argue that the

)1=) efugee Con*ention part of customary international law'

The Court of !ppeal accepted that this was the case'

The interest of the Court of !ppeal is that it elaborated fully the

general rules of international law for accepting that general

customary law could be identified' It did so *ery fully' It insisted

that international law is based on the practice of states and then

concluded that the applicants did not actually produce any

practice, but relied merely upon doctrinal writings, secondary

e*idence of practice' !t the same time the Court of !ppeal

accepted the e*idence of the so5called >an emo eclaration and

such specialists as Lauterpacht and Bethlehem, of the ?ni*ersity

of Cambridge esearch centre in International Law'

Howe*er, a more serious point was that the Hong Kong

Go*ernment relied upon an Immigration rdinance of 28'4')11&

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populated territory and special considerations would apply there'

It was noted that the Hong Kong authorities continued to rely

upon the capacity granted to them under the Basic Law to apply

immigration controls on entry into, stay in and departure from

the egion by persons from foreign states and regions +art')=(7-'

This is an area where Hong Kong has competence and the Court

of !ppeal loo/ed decisi*ely to what was the intention of the Hong

Kong Go*ernment' It clearly intended to continue to /eep a full

discretion and not be bound by international law' This had always

been Hong Kongs position'

inally the applicants endea*oured to argue that the rules of the

efugee Con*ention were nowIus Cogens# a concept coming from

article =2 of the Aienna Con*ention on the Law of Treaties' It

would mean that the rule in uestion was so fundamental to the

order of international society that no indi*idual state would be

allowed to dissent from it' nce again, the Court of !ppeal relied

upon the opinions of legal writers thatIus Cogens did not apply to

this area of the law'


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It is uestionable whether there was any real issue of substance in

the case anyway' !s a matter of discretion the Hong Kong

irector of Immigration refers possible cases of refugee status to

the HC ffice and the applicants were trying to demand that he

should set up independent procedures of his own, that the reasons

gi*en for refusal were often not enough' He replied that the

reasons were /ept brief for grounds of confidentiality in the

interest of the applicants' Howe*er, the case is a *ery recent

e.ample of how the Hong Kong Courts readily engage in the full

sweep of the application of general customary law and do so in a

*ery /nowledgeable way'

Howe*er, a much more contro*ersial uestion is posed about the

place of international law in a recent case which came before the

Court of inal !ppeal and was decided on une 6th 8)),

)overnent of Congo versus $) *eisphere

http+,,legalref.-udiciary.gov.h,lrs,coon,search,search/result/de

tail/frae.-sp0(I!12324256!1784789$)72C*eisphere

78:5TP1J; This case raises a crucial problem for the Courts in

2
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Hong Kong when applying international law' Hong Kong is part

of China and article )=6 only accords the Hong Kong Courts a

power of autonomous interpretation where it concerns pro*isions

of the Basic Law within the limits of the autonomy of the egion M

which may be the case with immigration' Howe*er, where

relations between Hong Kong and the Central Go*ernment are

concerned and where the matter is within the competence of the

Central Go*ernment under the Basic Law, the C! should refer

the matter for interpretation by the J"C>C' The e.tent of this

obligation was at issue in the case' The C! decided that policy

on so*ereign immunity, an issue of international law, should be

decided in Bei#ing and was not within the autonomy of Hong

Kong' Howe*er, the *iew in the Court of !ppeal had been that

so*ereign immunity doctrine was part of the common law and

came under the #urisdiction of the Hong Court courts' This

remains a matter of great contro*ersy and some attempt will be

made to illuminate the issue'

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The facts of the(RC v $) *eisphere are *ery well /nown'

Here it is not necessary to reiterate them' The essential point is

that the "C is engaged in massi*e de*elopment cooperation with

the C, through the instrumentality of its state owned

enterprises +>;- and ban/s, some of which ha*e a seat in Hong

Kong' G Hemisphere wished to reco*er a pre*ious bad debt of

the C through entry fees that the "Cs >;s in Hong Kong

are due to pay the C' The "C argues, through the >ecretary

of ustice as inter*ener, that it is its *iew of international law that

so*ereign immunity is absolute and that this rule should apply to

Hong Kong Courts e.ercise of #urisdiction' The "C, especially

in its 2rdletter to the Court, also argues that so*ereign immunity

and its transactions with the C are clearly matters of foreign

affairs which fall outside the competence of the HK>!' It argues

that in matters of foreign affairs, such as the state policy on

so*ereign immunity, it is essential that the HK>! and the "C

spea/ with one *oice'

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These arguments appear to mingle together ine.tricably

international law and domestic constitutional law uestions' It is

nowhere e.plicitly stated by the "C in its letters, that it alone

decides the content of international law that applies to the "C'

Howe*er, it could be argued that, in the *iew of the "C, it is a

particularity of this aspect of international law, that each state

applies it in its own courts as it #udges its state policy to reuire'

Then the uestion arises, what is the status of the international

law doctrine of restricti*e immunity as it has applied through the

common law, in Hong Kong' It could be said that Hong Kong,

before the hando*er, simply had applied to it the decisions which

the ?K applied, also as a matter of state policy, with respect to

so*ereign immunity in its national courts' The failure to /eep on

the ?K >o*ereign Immunity ordinance after )11& might indicate

the intention that "C state policy was to be adopted in Hong

Kong' This is a matter of interpretation of all aspects of the Basic

Law, including the legal arrangements accompanying the

Hando*er in une )11&'

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International law is a general system of law which is eually

binding on all states' In other words, it is not a matter of

indi*idual state legal policy how international law is understood'

"articularly, customary international law binds all states, e*en

those which ha*e not e.pressly consented to it' Through

persistent ob#ection it might appear that an indi*idual state may

opt out of an e*ol*ing rule of customary international law'

Howe*er, the possibility of persistent ob#ection is disputed and, in

any case, it is contested in this case, whether the "C is effecti*ely

a persistent ob#ector' !s for the position of the ?nited Kingdom it

would be tendentious to say that the doctrine of restricti*e

so*ereign immunity is its state policy' In other words, the

common law of Hong Kong itself reflected at, and after the

Hando*er, what was regarded as the international law doctrine of

restricti*e so*ereign immunity' It would be better to say that the

?K and its former colony, under the ne Country, Two >ystems

rule, are obser*ing the fairly recently e*ol*ed international

customary law rule on restricti*e so*ereign immunity' I am aware

that all of these points, as a matter of international law, can be a

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matter of debate and ha*e been in the High Court and in the

Court of !ppeal in this case'

Howe*er, it is a remar/able fact that both the ma#ority and the

minority opinions in this case /eep a firm distance from

international law and purport to treat the entire legal issue of

so*ereign immunity as a matter of what the #udges call

municipal law and constitutional principle$' The case note

e.plores how all of the #udges do this' It speculates a little as to

why they do so, but abo*e all, it e.presses concern about the

conseuent apparent abdication of international law issues by the

Hong Kong Courts in fa*or of the "C, ostensibly on the ground

that it is a matter of foreign policy for the "C to determine the

content of international law' It is recommended that it would ha*e

been better for the rule of law in international society M a society

of which Hong Kong in economic matters is a *ery significant

part 5 for the ma#ority to ha*e determined that either the law of

so*ereign immunity was absolute under international law, the

same *iew as that of the "C, or that e*en under the doctrine of

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restricti*e immunity, the relations of the "C and its >;s in the

C had an entirely so*ereign character, normally outside the

#urisdiction of national courts' This would ha*e preser*ed more

clearly the competence of the Hong Kong courts to interpret

effecti*ely all of those rules of international law which touch upon

the e.ternal aspects of the economic and social relations which

normally come within its #urisdiction under the Basic Law'

Instead, the Court of inal !ppeal appears to ha*e left a great

deal of confusion around the relationship of international law and

constitutional law in both the "C and in the HK>!, and *ery

much to the disad*antage of international law'

The >ide5Lining of International law in all of the udicial

pinions

The ma#ority opinion claims +para'())- to re#ect the rele*ance of

international law to the case, whether it reuires the rule of

absolute or restricti*e immunity and whether the "C could be

an effecti*e persistent ob#ector' It goes on to say that it is not

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necessary to consider this uestion because we ha*e

pro*isionally reached the conclusion that, as a matter of

municipal law and constitutional principle, the doctrine of state

immunity applicable in the HK>! is one of absolute immunity$'

This is a clear statement by the Court of inal !ppeal that there

is an absolute distance between international law and what it calls

municipal law and constitutional principle$'

The position of the dissenting ustice Bo/hary is identical'


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necessary for him to decide whether restricti*e immunity is a rule

of customary international law' Jor is it necessary for me to

decide whether persistent ob#ection wor/s$'

In other words, the case appears to ha*e been predominantly

argued and entirely decided in terms of what is supposed to be the

constitutional position in Hong Kong and the "C' The

confrontation between the ma#ority and the minority, including

ustice Oortimer, could not be more se*ere' The minority argue

that the Hong Kong constitutional settlement is one country M two

systems, and that the common law is part of the two systems' The

common law has a doctrine of restricti*e immunity' The minority

do not engage in a detailed in*estigation of the meaning of the

doctrine of restricti*e immunity, how it might wor/ in practice at

present in international society, and, especially, do not engage in a

discussion of the merits of the doctrine in the particular facts of

the case'

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The True octrine of the Incorporation of Customary

International Law into the Common Law

The position of the Court of !ppeal in this case, effecti*ely now

that of Lord "annic/ and ustice Boh/ary, is wrong' The tas/ of

;nglish #udges is to ascertain the current state of Customary

International Law as forensically as possible' In other words, it is

not simply a matter of treating pre*ious common law courts

decisions as free@ing international law into binding precedents at

a particular point in time' The upshot is that no pre*ious

incorporation of Customary International Law is decisi*e' The

Courts are not simply following the common law, but ascertaining

the continuing de*elopment of principles of international law'

The uestion should not be limited to% what has the common law

of Hong Kong pre*iously incorporated as Customary

International Law9$ Instead, it must always be what does

Customary International Law currently pro*ide$9 It reuires

the courts to resist common law beha*iors of applying precedent,

but more importantly for the present constitutional conflict, it

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means that the Courts are not #ust applying the common law of

Hong Kong at the time of the hando*er M which may or may not

be, or ha*e to be, compatible with the constitution of a unitary

state' They are applying a uni*ersally accepted international law

standard' toc/ A5", with whom Puen ! agreed

on this point, made a tentati*e finding that the generality of

>tates do subscribe to 0restricti*e immunity3 +paragraph &4-$, but

the choice of both #udges, and in this case also ustice Boh/ary

+paragraph )2-, to base their decision on the state of the common

law as at the hando*er +paragraph ))65), =654&-, lea*es them

open to the constitutional law argument that a unitary state

should follow a single national law on so*ereign immunity' It

would ha*e been much more difficult for such a constitutional law

argument to be made in the face of a determination by the Court

of !ppeal, and by the dissenting ustices Boh/ary and Oortimer,

that international law reuired the acceptance of the doctrine of

restricti*e immunity'

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!ccordingly, where constitutional responsibility for the

conduct of foreign affairs is allotted to the e.ecuti*e, and

where the courts accept a one *oice$ principle, there is no

reason to e.clude that approach in relation to the e.ecuti*es

policy regarding the recognition or non5recognition of a

commercial e.ception to absolute state immunity'

The Oa#ority repeat this idea many times' >o, they say

+paragraph 4=-, that it is plain that the conferring and

withholding of state immunity is a matter which concerns

relations between states, forming an important part of the

conduct of a nations affairs in relations with other >tates'$ It is

important to see that the ma#ority are confronting what they see

as a constitutional principle, whether the HK>! can espouse a

different state immunity doctrine +paragraph 12-' These are also

the terms in which ustice Boh/ary sees the matter' The two

systems element of one country two systems, applying to HK>!5

"C relations, allows the HK>! to continue to adhere to what

he sees as the common law principle of restricti*e immunity as its

part of the two systems +paragraph )2-' This is opposed by the

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ma#ority to the *iew e.pressed in the 2rdLetter from the CO!,

identifying the pre#udice to the so*ereignty of the Chinese >tate

which would result if the HK>! courts were to purport to

promulgate a di*ergent state immunity doctrine$ +paragraph

1(-' These statements in the #ust mentioned letter are what the

Oa#ority call facts of state$, uoting '!, Oann to mean facts,

circumstances and e*ents which lie at the root of foreign affairs

and their conduct by the ;.ecuti*e$ +paragraph 1=-'

The conclusion follows for the Oa#ority that the act whereby the

C"G determines the policy of state immunity applicable to the

HK>! is an act of state coming within the concept of acts of

state such as defense and foreign affairs$ in !rticle )1+2-' This is

because It in*ol*es the C"Gs determination of the "Cs policy

in its dealings with foreign >tates with regard to state immunity$

+paragraph 2=-' The Oa#ority then proceed to treat the letters

from the CO!, established under !rticle )2+- of the Basic

Law as ha*ing the status of declarations of facts of state, which

the HK>! courts accept as authoritati*e statements of facts

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within the peculiar cogni@ance of the e.ecuti*e organ of the

go*ernment ha*ing charge of a nations foreign policy$

+paragraph, 242-' The uestions of fact are the "Cs

determination of the fact that the doctrine adopted by the "C is

a doctrine of absolute immunity and that the adoption of a

di*ergent position of the HK>! courts would pre#udice Chinas

so*ereignty and hamper its conduct of foreign affairsN$

+paragraph 24)-' !s for as/ing for a certificate from the Chief

;.ecuti*e, there is no need for him to be troubled e*en where the

rele*ant facts ha*e been authoritati*ely established and are not in

dispute$ +ibid'-' ust to reiterate, the Oa#ority is referring to the

undisputed and authoritati*e facts of state declared in the

CO! Letters, without need for a certificate$ +paragraph 242-'

TheChief ;.ecuti*e of Hong Kongbeas/ed merely to

characteri@e the facts of the Congos and Chinas acti*ities in

the Congo as either commercial or so*ereignunder !rticle )1+2-'

By this we meant, not whether the original loans incurred by the

C in the )168s were commercial, or whether the use to which

''


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the C would put the entry fees gi*en to it by Chinese

companies was commercial, but whether all of the facts of the

transactions ta/en together would impact on the foreign policy

goals of the "C if they were ad#udicated in the HK>! Courts'

That appeared to us as a situation for which it could be the goal of

the safety5catch of article )1+2- to pro*ide' n the facts, we

argued, the acti*ities are most li/ely so*ereign in the sense that

China is implicated at the highest le*el in these acti*ities, in order

to achie*e a range of social and political as well as economic goals'

rom the statements in paragraph = of the CO! 2rdLetter,

we /now what the answer would be to such a reuest under

article )1+2-' The letter says categorically that supporting the

economic de*elopment of de*eloping states is one of the foreign

policies of China' oreign companies acuiring de*eloping

country debts, at /noc/down prices and then claiming the full

original *alue through #udicial proceedings, hampers efforts to

assist these de*eloping countries' >uch practice is ineuitableN

If the HK>!Nfacilitate the pursuance of the abo*e5mentioned

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accept without uestion whate*er the "Csays to be

international law, on whate*er matter,including the proposition

that as a matter of international lawthe role of a persistent

ob#ector is accepted 55 in fact a thoroughly contested issue among

international lawyers'

The Oa#ority opinion has gone much further than was necessary

for a decision of the case and could e.pose the "C on other

occasions to legal argument in the HK>! Courts for adopting

an unusual interpretation of a rule of international law or for

once again appearing as a persistent ob#ector, opposing the

de*elopment of a new customary rule of international law, when

it might be recei*ing the support of most states' The contro*ersy

which e.ists at present about the nature and e.tent of state

immunity in international customary law is not an unusual

feature of international law' It is uite normal that different states

ha*e different interpretations of the nature and e.tent of rules of

international law' It appears, on the face of it, that the Oa#ority

opinion in this case is committing itself to the position that the

'/


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"C, through the CO!, may deli*er an interpretation

binding upon it, with respect to any and e*ery rule of customary

international law or e*en a multilateral treaty to which the

HK>! is party through the good offices of the "C' It is true

that, generally, the "C does not fa*or compulsory or other third

party ad#udication of disputes, although it does accept it in some

cases, such as under the >tatute of the


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It appears ob*ious, after the decision of the Court of !ppeal, that

the(R Congo v $* *eispherecase was building up into a

constitutional confrontation along the lines of The Coon Law

versus the !overeignty of the PRC. It was, arguably, a mista/e on

the part of both the Oa#ority and the issenting pinions not to

go directly to an interpretation of the international law' It would

ha*e been open to the Oa#ority opinion to ha*e itself e.pressed

the sentiments that are in the 2rd Letter, paragraph =' This would

also ha*e challenged ustices Boh/ary and Oortimer to enter

more closely into the merits of the particular case and re*isit the

decision of the Oa#ority in the Court of !ppeal as to whether the

transactions are so*ereign or commercial' Instead, they put the

main weight of their opinions onto a defense of the common law

as an e.pression of the rule of law of which #udges are the

guardians'

The issue would not simply be whether the original debts

incurred by the Congo Go*ernment in the )168s were so*ereign

or commercial, but whether all the facts underlying the

'


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countries, in this case Oemoranda of ?nderstanding between the

?K and Libya, which, despite the fact that they are treaties, do

not ensure the ?Ks compliance with international law'

http:55www"migrationwatchuk"org5briefing*aper5document52.

The ?K +Blair - Go*ernments assertion that it was safe to return

Libyan suspect terrorists to Libya was not accepted, whate*er

high policy of state might encourage the ?K, at that time, to

culti*ate good relations with Colonel Gaddafi' The treaty

assurances gi*en by Libya to the ?K and accepted by the ?K

were not sufficient for the Court of !ppeal' f course it is true

that the Court of !ppeal is able to rely upon the Human ights

!ct )116 incorporating the ;CH into ?K law' Je*ertheless, the

immigration cases show that as a matter of legal policy it is not

the case that common law #udges must defer to the ;.ecuti*e

simply because an issue before it concerns foreign relations' These

foreign relations must now be #udged in the light of the

international rule of law, in these cases, international human

rights law'

'3
http://www.migrationwatchuk.org/briefingPaper/document/84http://www.migrationwatchuk.org/briefingPaper/document/84


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General Customary law and the Hong Kong Courts.doc