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
1

and transformation is not important' He says that international law is *alid so long as its principles are accepted and adopted by our$ domestic law, but on any #udicial issue the #udges see/ to ascertain what the rele*ant rule +of international law- is, and ha*ing found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted or finally declared by their tribunals$ 0)1213 !C )4&56'

http%77www'#stor'org7stable7pdfplus7,)182(4'pdf9acceptTC:true The case head note reads: The appellant, a British subject, who was cabin boy on board a Chinese Customs cruiser -an armed public ship of China- killed by shooting, the captain of the vessel, who was also a British subject, while the vessel was in the territorial waters of ong-!ong" #mmediately after the shooting the acting chief officer of the vessel, who had also been shot at and wounded by the appellant, ordered the vessel to proceed to ong-!ong, and on arrival there the police took the appellant to hospital" $%tradition proceedings subse&uently instituted by the Chinese authorities having failed because the appellant was a British national, he was at once

'

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 <aldoc/, General Course on "ublic
-

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 0,88&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 I against (irector of

igration and !ecretary for !ecurity C!CA)2,7,886 to

C!CA)2&7,886' http%77legalref'#udiciary'go*'h/7lrs7common7search7searchBresultB detailBframe'#sp9CI>:&&(2&DE>:F,BDT":G? 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
.

was not generali@ed to include the acceptance of the )1=) Hefugees Con*ention' It had a policy of not repatriating persons who claimed refugee or asylum status and relied upon the The HCH Iffice in Hong Kong to assist in screening' Howe*er, this was a matter of discretion' The claimants tried to argue that the )1=) Hefugee 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 Hemo Ceclaration and such specialists as Lauterpacht and Bethlehem, of the ?ni*ersity of Cambridge Hesearch centre in International Law' Howe*er, a more serious point was that the Hong Kong Go*ernment relied upon an Immigration Irdinance of 28'4')11&
/

+chapter ))=- which was originally Jo' == of )1&)-, which left the Cirector of immigration an absolute legal discretion who to accept and who to refuse into Hong Kong' There was a rule to repatriate, e.cept that the Cirector could e.ercise his discretionary power on e.ceptional humanitarian or compassionate grounds' The uestion, therefore, arose whether it would be possible for Hong Kong to be a persistent ob#ector to the general customary law on asylum' This international law would say that a country does not ha*e a discretion as to whether to repatriate to his country of origin a person who had a well founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion' The applicants tried to argue that Hong Kong was not a state and therefore it could not function in such a way as to ob#ect to the de*elopment of a rule of international law with respect to itself' Howe*er, effecti*ely, the Court of !ppeal, ignored this type of argument' It noted that neither the ?K nor China had called for the application of the Hefugee Con*ention to Hong Kong' It was appreciated that Hong Kong was already a *ery densely
0

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 Hegion 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 KongKs position' Linally the applicants endea*oured to argue that the rules of the Hefugee Con*ention were now Ius 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' Ince again, the Court of !ppeal relied upon the opinions of legal writers that Ius Cogens did not apply to this area of the law'

It is uestionable whether there was any real issue of substance in the case anyway' !s a matter of discretion the Hong Kong Cirector of Immigration refers possible cases of refugee status to the HCH Iffice 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 Linal !ppeal and was decided on Gune 6th ,8)), )overn ent of Congo versus $) *e isphere

http+,,legalref.-udiciary.gov.h.,lrs,co

on,search,search/result/de

tail/fra e.-sp0(I!12324256!1784789$)72C*e isphere 78:5TP1J; This case raises a crucial problem for the Courts in
2

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 Hegion 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 CL! should refer the matter for interpretation by the J"C>C' The e.tent of this obligation was at issue in the case' The CL! 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'

The facts of the (RC v $) *e isphere are *ery well /nown' Here it is not necessary to reiterate them' The essential point is that the "HC is engaged in massi*e de*elopment cooperation with the CHC, through the instrumentality of its state owned enterprises +>I;- and ban/s, some of which ha*e a seat in Hong Kong' LG Hemisphere wished to reco*er a pre*ious bad debt of the CHC through entry fees that the "HCKs >I;s in Hong Kong are due to pay the CHC' The "HC argues, through the >ecretary of Gustice 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 CourtsK e.ercise of #urisdiction' The "HC, especially in its 2rd letter to the Court, also argues that so*ereign immunity and its transactions with the CHC are clearly matters of foreign affairs which fall outside the competence of the HK>!H' It argues that in matters of foreign affairs, such as the state policy on so*ereign immunity, it is essential that the HK>!H and the "HC spea/ with one *oice'

14

These arguments appear to mingle together ine.tricably international law and domestic constitutional law uestions' It is nowhere e.plicitly stated by the "HC in its letters, that it alone decides the content of international law that applies to the "HC' Howe*er, it could be argued that, in the *iew of the "HC, 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 re uire' 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 "HC 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 Gune )11&'

11

International law is a general system of law which is e ually 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 "HC 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 Ine 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
1'

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 conse uent apparent abdication of international law issues by the Hong Kong Courts in fa*or of the "HC, ostensibly on the ground that it is a matter of foreign policy for the "HC 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 "HC, or that e*en under the doctrine of
1-

restricti*e immunity, the relations of the "HC and its >I;s in the CHC 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 Linal !ppeal appears to ha*e left a great deal of confusion around the relationship of international law and constitutional law in both the "HC and in the HK>!H, and *ery much to the disad*antage of international law'

The >ide5Lining of International law in all of the Gudicial Ipinions

The ma#ority opinion claims +para'())- to re#ect the rele*ance of international law to the case, whether it re uires the rule of absolute or restricti*e immunity and whether the "HC could be an effecti*e persistent ob#ector' It goes on to say that it is not
1.

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>!H is one of absolute immunity$' This is a clear statement by the Court of Linal !ppeal that there is an absolute distance between international law and what it calls municipal law and constitutional principle$'

The position of the dissenting Gustice Bo/hary is identical' <hen faced with arguments for and against the change in the rule of customary international law on state immunity from absolute to restricti*e, he notes the agreement of Lord "annic/, for LG Hemisphere, at paragraph ),8, '''holding that the immunity a*ailable in the courts of Hong Kong is restricti*e does not re uire a general pronouncement by the Court that restricti*e immunity is a rule of customary international lawN$' !s Lord "annic/ puts it, the common law has had its debate on this in Hong Kong and the doctrine of restricti*e immunity has won' >o Gustice Boh/ary concludes in paragraph ),) that it is not
1/

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 "HC' The confrontation between the ma#ority and the minority, including Gustice 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 Coctrine 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 Gustice 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 courtsK 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 re uires the courts to resist common law beha*iors of applying precedent, but more importantly for the present constitutional conflict, it
11

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' <e noted that >toc/ A5", with whom Puen G! 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 Gustice Boh/ary +paragraph ),2-, to base their decision on the state of the common law as at the hando*er +paragraph ))65),,, ,=65,4&-, 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 Gustices Boh/ary and Oortimer, that international law re uired the acceptance of the doctrine of restricti*e immunity'

12

The Cetermination of the Content of a Hule of International Law is not an !ct of >tate, but a Oatter for Gudicial Interpretation'

The Oa#ority argues that Hong Kong and China ha*e to spea/ with one *oice in foreign affairs, that a so*ereign immunity law is part of foreign affairs, and that since the "HC has a *iew of so*ereign immunity as absolute this must be the law of Hong Kong as well' !s noted, the Oa#ority decide the case solely as a matter of what it calls municipal law and constitutional principle$' It gi*es no consideration at all to the idea of international law' ! closer e.amination of e.actly what the Oa#ority opinion in*ol*es is necessary to understand how they see the relationship of international law on so*ereign immunity to the Basic Law'

The first point is that they regard international law itself as automatically a matter of the foreign policy of a state' They state categorically at para',(&%

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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*eKs 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 nationKs 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>!H can espouse a different state immunity doctrine +paragraph ,12-' These are also the terms in which Gustice Boh/ary sees the matter' The two systems element of one country two systems, applying to HK>!H5 "HC relations, allows the HK>!H 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
'4

ma#ority to the *iew e.pressed in the 2rd Letter from the ICOL!, identifying the pre#udice to the so*ereignty of the Chinese >tate which would result if the HK>!H 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$, uoting L'!, Oann to mean facts, circumstances and e*ents which lie at the root of foreign affairs and their conduct by the ;.ecuti*e$ +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>!H 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"GKs determination of the "HCKs 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 ICOL!, established under !rticle )2+,- of the Basic Law as ha*ing the status of declarations of facts of state, which the HK>!H courts accept as authoritati*e statements of facts
'1

within the peculiar cogni@ance of the e.ecuti*e organ of the go*ernment ha*ing charge of a nationKs foreign policy$ +paragraph, 242-' The uestions of fact are the "HCKs determination of the fact that the doctrine adopted by the "HC is a doctrine of absolute immunity and that the adoption of a di*ergent position of the HK>!H courts would pre#udice ChinaKs 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'-' Gust to reiterate, the Oa#ority is referring to the undisputed and authoritati*e facts of state declared in the ICOL! Letters, without need for a certificate$ +paragraph 242-'

The Chief ;.ecuti*e of Hong Kong be as/ed merely to characteri@e the facts of the CH CongoKs and ChinaKs acti*ities in the Congo as either commercial or so*ereign under !rticle )1+2-' By this we meant, not whether the original loans incurred by the CHC in the )168s were commercial, or whether the use to which
''

the CHC 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 "HC if they were ad#udicated in the HK>!H 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' In 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'

Lrom the statements in paragraph = of the ICOL! 2rd Letter, we /now what the answer would be to such a re uest 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' Loreign companies ac uiring 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 ine uitableN If the HK>!HNfacilitate the pursuance of the abo*e5mentioned
'-

practice, it would be contradictory to the abo*e5mentioned foreign policy of China and tarnish the international image of China$' The ICOL! letter is in this respect an entirely commendable #udgment of fact' It treats the practices of LH Hemisphere as damaging to the welfare of the Congo, frustrating to the "HCKs desire to help it de*elop and damaging to the reputation of the "HC, which would ha*e a reputation for harboring a bad5debt$ collecting centre in the shape of the HK>!H Courts'

The re uest should be from the CL! to the Chief ;.ecuti*e, or simply, as the Oa#ority would prefer, ta/ing paragraph = of the 2rd Letter as being perfectly clear in its meaning, would be enough to terminate this case, to decide it conclusi*ely' This a*oids what now appears to ha*e happened' He*iewing the British practice we said that Nthe Loreign Iffice was not entitled to bind ;nglish courts on matters of international law generally' !bstract *iews on the law, e*en international law, were in no way conclusi*e$' The CLI Oa#ority appear to be saying that a HC>!H Court must
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accept without uestion whate*er the "HC says to be international law, on whate*er matter , including the proposition that as a matter of international law the 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 "HC on other occasions to legal argument in the HK>!H 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
'/

"HC, through the ICOL!, 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>!H is party through the good offices of the "HC' It is true that, generally, the "HC 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 <orld Trade Irgani@ation' Howe*er, for the CL! ma#ority to treat the determination of the nature and e.tent of an international legal obligation as a declaration of a fact of state underlying foreign policy$ is to offer a huge hostage to fortune, which it was the hope of Gones and myself to a*oid through a simpler and more focused determination in accordance with the spirit of the abo*e uoted parts of paragraph = of the 2rd Letter'

Hecourse to International Law rather than Constitutional Law to !*oid Constitutional Conflict and Hesol*e the Oaterial Cispute ; uitably

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It appears ob*ious, after the decision of the Court of !ppeal, that the (R Congo v $* *e isphere case was building up into a constitutional confrontation along the lines of The Co on Law

versus the !overeignty of the PRC. It was, arguably, a mista/e on the part of both the Oa#ority and the Cissenting Ipinions 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 Gustices 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
'1

transactions now M between the CHC, the "HC and indi*idual ban/s and companies M ta/en together are so*ereign in the sense of impacting upon the foreign policy goals of the "HC' This use of article )1+2- appears appropriate as a safety5*al*e'

The Hole of Comestic Courts in Ce*eloping International Law

If course there is also the general uestion of the role of domestic courts in de*eloping international law' Oost #urisdictions in the world are proud of the role which their domestic courts can play in this respect' They are thought to be contributing significantly to the de*elopment of the rule of law at an international le*el' Indeed, it is now sometimes the position in ;ngland, that the Courts will not defer to the ;.ecuti*e on the issue whether the CrownKs conduct is compatible with the international rule of law' Ta/e for e.ample the fairly recent cases of appeal from the >pecial Immigration !ppeals Commission to the Court of !ppeal in ;ngland' Here, the Court of !ppeal has been willing repeatedly to uestion the soundness of treaties made by the ?K with foreign
'2

countries, in this case Oemoranda of ?nderstanding between the ?K and Libya, which, despite the fact that they are treaties, do not ensure the ?KKs compliance with international law' http:55www"migrationwatchuk"org5briefing*aper5document52.

The ?K +Blair - Go*ernmentKs 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' If course it is true that the Court of !ppeal is able to rely upon the Human Hights !ct )116 incorporating the ;CHH 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

In future, to limit the damage of this case, the Hong Kong Courts should distinguish the law of so*ereign immunity as a peculiar part of international law in allowing the courts to lea*e to the ;.ecuti*e the discretion to decide what comity re uires in relations with other states, so that normally its courts of law remain the authoritati*e interpreters of international law' Comity is an issue separate from #urisdiction' This is a difficult and *ery much e< post facto argument to ma/e' It might be possible to say that there is something especially sensiti*e about states using their own courts to sue one another as states' Howe*er, this should not be e.tended to claims of immunity of state officials in the courts of other states for acts which are contrary to international human rights, humanitarian or criminal law' !s can be already seen from these speculations, damage limitation is not going to be easy'

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-1