A. Application of English Law

After Hong Kong came under British occupation, the Hong Kong British authorities provided for the application of English law through Section 3 of the Supreme Court Ordinance (Ordinance No. 15 of 1844): “the law of England shall be in full force in the said Colony of Hongkong, except where the same shall be inapplicable to the local circumstances of the said Colony, or of its inhabitants”. After successive amendments, the above provision was replaced by the Application of English Law Ordinance (Ordinance No. 2 of 1966; Chapter 88 of the Laws of Hong Kong), which provided in its Section 3 that “[t]he common law and the rules of equity shall be in force in Hong Kong, so far as they are applicable to the circumstances of Hong Kong or its inhabitants and subject to such modifications as such circumstances may require”. The Ordinance remained in force until Hong Kong’s return to China.Footnote ⁶ As issues of application of international law concerned the foreign affairs of the UK, the relevant general principles at English common law were applied to Hong Kong.

In brief, English law adopts a “doctrine of transformation” under which treaties are given the force of law domestically upon enactment of implementing legislation.Footnote ⁷ While varying views have been expressed on customary international law,Footnote ⁸ as a general observation, English law largely adopts a “doctrine of incorporation”, under which customary international law norms may be adopted as a source of common law, subject to conditions such as compatibility with the domestic constitutional system and statutes.Footnote ⁹

B. Cases Before Hong Kong British Courts

These doctrines were applied to Hong Kong by the UK, not only through the above-mentioned statutory provisions, but also under case-law. The Judicial Committee of the Privy Council [JCPC] was the final appellate court for the Hong Kong British courts, and the JCPC’s decisions on appeals from such courts had precedential effect and were binding on them.Footnote ¹⁰ The JCPC had indeed decided appeals from Hong Kong involving international law issues, including the often-cited cases of Chung Chi Cheung v. R Footnote ¹¹ and Philippine Admiral v. Wallem Shipping (Hong Kong) Co. Ltd. Footnote ¹² on immunities relating to foreign (non-British) states. The JCPC’s decisions on appeals from other jurisdictions, and decisions of the House of Lords which had appellate jurisdiction over UK courts under the Appellate Jurisdiction Act 1876, also had very high persuasive authority and were generally followed.Footnote ¹³ As such, Hong Kong British courts applied English common-law principles in handling cases involving the effect of treaties in local lawFootnote ¹⁴ and customary international law.Footnote ¹⁵

The above ensured, in cases involving international law issues before Hong Kong British courts, that not only were the laws to be applied, but also that the outcomes of the cases, conformed with the UK’s position. This was manifested in the seminal case of Civil Air Transport Incorporated v. Central Air Transport Corporation,Footnote ¹⁶ which involved a scheme of the former Nationalist regime in China in “transferring” the aircraft of the state-owned China National Aviation Corporation and Central Air Transport Corporation in Hong Kong to the “Civil Air Transport Incorporated” [CAT] set up by, inter alia, Claire Lee Chennault, former Lieutenant-General in the US Army, so as to prevent the Central People’s Government, newly established on 1 October 1949, from recovering such aircraft upon the UK’s anticipated recognition of the People’s Republic of China.Footnote ¹⁷

While the then Supreme Court initially refused in May 1950 CAT’s application to recognize the “transfer” on the basis of sovereign immunity of the People’s Republic of China (now recognized by the UK) before Hong Kong British courts,Footnote ¹⁸ as Alexander Grantham, then Hong Kong British Governor, recalled, the US State Department “represented to London that on no account should the planes be given to the Chinese”.Footnote ¹⁹ The British government subsequently issued the “Supreme Court of Hong Kong (Jurisdiction) Order in Council”, ordering that “it shall not be a bar to jurisdiction of the Court that the action or other proceeding impleads a foreign sovereign State”.Footnote ²⁰ The Supreme Court still dismissed CAT’s application on the basis that the purported “transfer” was “hostile to the present de jure [Chinese] Government and to the interests of the Chinese people”.Footnote ²¹ It was not until 1952 when the JCPC reversed the lower courts’ decision on the basis that “retroactivity of [subsequent] recognition operates to validate acts of a de facto Government which has subsequently become the new de jure Government, and not to invalidate acts of the previous de jure Government”,Footnote ²² and that “[t]he question of motive in effecting the transaction of sale was irrelevant”.Footnote ²³

While no information has been found on the intentions behind the rulings of the Hong Kong British courts in this case, Grantham noted that while “the law was on the side of the Chinese Government”, the British government, “not want[ing] to offend Washington”, had to “do a thing of which they have reason to be ashamed” by “wrap[ping] it up in a legal covering”.Footnote ²⁴ In any event, this case demonstrated that the Hong Kong British courts were subject to, and had to conform to, the ultimate authority of the UK.

A. Constitution, Basic Law, and Other National Laws

As to the present HKSAR, general provisions are found in Article 89(9) of the Chinese Constitution that the State Council, being the Central People’s Government, exercises the powers and functions in the conduct of foreign affairs and the conclusion of treaties and agreements with foreign states. Then, Articles 13(1) and 19(3) of the Basic Law stipulate respectively that the Central People’s Government shall be responsible for the foreign affairs relating to the HKSAR, and that HKSAR courts have “no jurisdiction over acts of state such as defence and foreign affairs” and are bound by certificates from the HKSAR Chief Executive on questions of fact relating to such acts of stateFootnote ²⁵ to be issued upon obtaining certifying documents from the Central People’s Government.Footnote ²⁶

That said, neither the Constitution nor the Basic Law explicitly stipulate the domestic legal status of international law in China generally or in the HKSAR locally. While there are several national laws providing for the application of treaties in specific fields,Footnote ²⁷ only a limited number of such national laws are listed in Annex III to the Basic Law and applied to the HKSAR.Footnote ²⁸

B. HKSAR Local Law

Outside the ambit of the above, the application of international law under HKSAR law has generally been in accordance with common law in place under the provisions of Article 8 of the Basic Law.

As one may observe from the practice of the past twenty years, the position of treaties in HKSAR local law, with which most international law cases before HKSAR courts have been concerned, has been relatively clear. As confirmed on various occasions, including by the Court of Final Appeal in Ubamaka v. Secretary for Security and Director of Immigration, “international treaties are not self-executing” and “unless and until made part of our domestic law by legislation, they do not confer or impose any rights or obligations on individual citizens”.Footnote ²⁹ Indeed, this position has been acknowledged in the drafting of the present Article 39 of the Basic Law, which provides that the relevant provisions of certain human rights treaties “as applied to Hong Kong” shall “be implemented through the laws of the [HKSAR]”, and which reflects the intention of the drafters in recognizing the above established rule in Hong Kong local law.Footnote ³⁰

Conversely, there have been fewer cases before HKSAR courts involving questions of customary international law. While a number of state immunity cases, including FG Hemisphere Associates LLC v. Democratic Republic of the Congo and Others (DR Congo case)Footnote ³¹ which has attracted most attention, have arisen,Footnote ³² together with immigration cases such as C and Others v. Director of Immigration and Secretary for Security concerning refugee non-refoulement,Footnote ³³ these cases, especially upon reaching the Court of Final Appeal, were generally disposed of by reference to Chinese domestic laws (including HKSAR local laws as appropriate) without engaging in substantive discussion of international law as such.Footnote ³⁴

C. International Rights and Obligations in Operation Under Different Legal and Court Systems

Nonetheless, these international law issues before HKSAR courts present a unique question. On the one hand, it is the Central People’s Government, as “the sole legitimate government representing in the realm of international relations the whole of China as a subject of international law”,Footnote ³⁵ that bears the international rights and obligations arising from the application of international law in the HKSAR, being an inalienable part of China coming directly under the Central People’s Government. On the other hand, not only has the HKSAR retained its pre-existing legal system, but, in contrast to the system of appeals to the JCPC for Hong Kong while under British administration, the HKSAR has also been given independent judicial power including that of final adjudication,Footnote ³⁶ though such power is subject to, inter alia, the power of the Standing Committee of the National People’s Congress [NPCSC] in the interpretation of the Basic Law,Footnote ³⁷ and that HKSAR courts have no jurisdiction over acts of state such as defence and foreign affairs.Footnote ³⁸ Cases before HKSAR courts are not appealed to the Supreme People’s Court.Footnote ³⁹ Also, while the Supreme People’s Court, being the highest adjudicative organ of China supervising the administration of justice by all lower People’s Courts,Footnote ⁴⁰ has put in place mechanisms for the handling of international law cases which apply to all lower People’s Courts,Footnote ⁴¹ such mechanisms do not apply to HKSAR courts.

The question here is how international law cases coming before HKSAR courts can be handled in line with the international rights and obligations of the state of China. While there have only been limited cases before HKSAR courts requiring consideration of this question, the experience of the DR Congo case may offer some insights into how the question may be handled.

A. Facts and Proceedings

DR Congo was sued in Hong Kong for recovery of compensation from arbitral awards made under contracts on which the Congolese government was said to have defaulted. DR Congo claimed absolute immunity from the jurisdiction of HKSAR courts pursuant to China’s position, whereas FG Hemisphere asserted that DR Congo enjoyed only “restrictive immunity” which did not cover the subject matter in the present case. This was the first case in which HKSAR courts were engaged with the question of what the rule of state immunity to be applied in the HKSAR should be, specifically whether the HKSAR, being part of China, had to apply the principle of state immunity as adopted by the state of China at the time (i.e. absolute immunity), or whether it could deviate from such and apply the doctrine of “restrictive immunity” in continuation of the British approach, under either the State Immunity Act 1978Footnote ⁴² or English common law, as applied in Hong Kong before 1997.Footnote ⁴³

Having gone through successive hearings before the Court of First Instance and the Court of Appeal within the High Court, the case was appealed to the Court of Final Appeal, which delivered a provisional judgment in which it referred to the NPCSC for interpretation of Articles 13(1) and 19 of the Basic Law regarding the foreign affairs of the state and “acts of state” respectively,Footnote ⁴⁴ together with expressing a provisional view that the HKSAR could not, “as a matter of legal and constitutional principle”, adhere to a doctrine of state immunity that differed from that adopted by the state.Footnote ⁴⁵ The NPCSC adopted the interpretation of the above Basic Law provisions,Footnote ⁴⁶ which was followed by the Court of Final Appeal in its final judgment confirming its provisional judgment.Footnote ⁴⁷

B. Effective Application of International Law

This landmark case illustrates the basic principles for the application of international law in HKSAR court cases under the Constitution and the Basic Law—that foreign affairs, including those relating to the HKSAR, are the responsibility of the Central People’s Government, and that HKSAR laws have to be in conformity with its constitutional status within the state of China and are to be subject to modifications, adaptations, limitations, or exceptions necessary for such conformity, including with the international rights and obligations of the state.Footnote ⁴⁸

On the other hand, the experience of the DR Congo case presents a practical question of how the above principles may be implemented. Questions relating to treaties arising before HKSAR courts so far may be regarded as being more straightforward, in the light not only of their relative identifiability, but also of express references to treaties within the Basic Law and, as mentioned, the long-standing practice in the common law in place in Hong Kong in requiring implementing legislation which has been acknowledged in the drafting of Basic Law provisions. Conversely, the application of customary international law in Hong Kong may pose more complex questions, including potential implications and impacts of any determination of customary international law issues upon the international legal position of the state.

C. References from Existing Hong Kong Legislation

In this regard, while this has not been considered in HKSAR court decisions, in the course of the proceedings of the DR Congo case,Footnote ⁴⁹ there were discussions on whether issues of state immunity may be disposed of simply by applying Section 6 of the International Organizations and Diplomatic Privileges Ordinance (Chapter 190 of the Laws of Hong Kong), which presently reads as follows:

Section 6 of the Ordinance, as originally enacted in 1948 as the “Diplomatic Privileges Ordinance” (Ordinance No. 56 of 1948), stipulated that “the law and custom relating to the immunities and privileges … for the time being in force in England shall … have effect and be enforced in the Colony”. According to the “Objects and Reasons” of the Diplomatic Privileges Bill 1948 leading to enactment of the 1948 Ordinance, the purpose of this section was to “assimilate” the law in place in Hong Kong to English law.Footnote ⁵⁰ Section 6 was amended into the current form in 1999Footnote ⁵¹ to refer to international custom recognized by the People’s Republic of China.

On its face, Section 6 appears to apply to “the privileges and immunities of diplomats and other similar representatives”,Footnote ⁵² and did not appear to be intended to cover the immunity of a foreign state itself; otherwise, for the Hong Kong British courts before 1997, reliance could have been made on this section, rather than the common law or the extension of the British State Immunity Act to Hong Kong, on state immunity issues. Given the various treatiesFootnote ⁵³ that govern the privileges and immunities of diplomatic agents, consular officials, and state representatives to international organizations, it may not be surprising that no court case in Hong Kong applying Section 6 has been found. That said, this provision, containing the two limbs of recognition by China and applicability mutatis mutandis, may provide a basis for a mechanism for the application of international law generally, in conformity with the international law rights and obligations of the state of China, while at the same time catering for the particular circumstances of the HKSAR.Footnote ⁵⁴

On the one hand, as the rights and obligations under international law as applied in the HKSAR are to be assumed by the state, it is important to ensure that the application of international law in the HKSAR conforms to such rights and obligations of China on the international law plane. The first limb, in referring to the application of international custom as recognized by China, seeks to achieve this purpose. On the other hand, certain adaptations may be needed for the application of such custom in the HKSAR given its specific circumstances as a special administrative region of China.

Indeed, this approach has been recognized in China’s scrutiny of the then existing laws in Hong Kong in the run-up to Hong Kong’s return to China. When examining the Jury Ordinance (Chapter 3 of the Laws of Hong Kong), it was noted that the exemption of “consuls, vice-consuls, and officers of equivalent status, of foreign governments” from jury service under Section 5(1)(c) was not specifically stipulated in the relevant national laws on diplomatic and consular privileges and immunities to be applied in the HKSAR (which incorporated relevant treaty provisions). Nonetheless, Section 5(1)(c) was considered in line with the general principle of judicial immunity of diplomatic agents and consular officials under these national laws,Footnote ⁵⁵ and hence was adopted in principle as part of HKSAR laws.Footnote ⁵⁶ This demonstrates that flexibility is both required and possible in ensuring conformity with China’s international rights and obligations and also in accommodating the specific circumstances of Hong Kong.

Also, the approach of Section 6, which is in itself a statutory provision enacted under the common-law system, has the advantage of operability within the common law in the HKSAR. In addition to the second limb of applicability mutatis mutandis as mentioned, which already caters for the specificities of Hong Kong, the first limb of “recognition” by China, which entails ascertaining whether China has as a matter of fact recognized and accepted such custom and what such custom is, may be similar to that adopted not only in HKSAR statutes,Footnote ⁵⁷ but more importantly in Article 19(3) of the Basic Law on certification regarding acts of state, a mechanism which is also common in various common-law jurisdictions.Footnote ⁵⁸ The approach of Section 6 may therefore serve as useful reference for the mechanism for application of customary international law, or indeed other international law issues, in the HKSAR legal system.