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