A. Hong Kong's Constitutional Structure

In order to appreciate the relevance of the UK's immigration reservation to the application of the ICCPR in Hong Kong, it is first necessary to provide some overview of Hong Kong's constitutional structure. This analysis will show that in order to determine whether those subject to immigration control are entitled to invoke the ICCPR in Hong Kong courts it is necessary to examine the historical application of the ICCPR to Hong Kong arising from the UK's ratification of the treaty in 1976. Upon a proper application of this constitutional principle, it is clear that section 11 of the HKBORO, in excluding rights-based challenges to immigration decisions, does not faithfully incorporate the ICCPR as applied to Hong Kong on the international plane.

The notion that international law and the history of a state's treaty ratification may be relevant factors in assessing the scope and potentially the validity of domestic legislative enactments is, from a dualist perspective, a questionable proposition. Under dualist principles, of which Hong Kong adheres given the common law origins of its legal system, international law and domestic law are treated as two separate orders, operating on different planes.Footnote ¹⁷ For a treaty to be a source of domestic law it is first necessary for such instrument to be transformed into legislation, as was the case with the ICCPR in Hong Kong following the enactment of the HKBORO. Yet, a criticism may be made in those instances where a state's incorporating legislation is not a faithful reflection of the treaty commitments it assumed on the international plane.Footnote ¹⁸ It may be the case, for instance, that the domestic enactment undercuts international commitments by only providing for the selective incorporation of a treaty, or that it subjects such rights to additional restrictions that are not found in the international instrument. Still, from a dualist perspective the fact that the legislature has chosen to depart from its international obligations does not give cause to challenge the operation of such incorporating legislation. Indeed, the legislature's decision to pass a bill that is at a variance with the state's international commitments is itself a manifestation of the separation of powers principle, locating the ultimate constitutional responsibility to make law with the legislature.Footnote ¹⁹ A dualist would therefore say that whether the HKBORO faithfully gave effect to international treaty commitments has no bearing on the application of this legislation in domestic law.

However, it is evident from the language and purpose of the Basic Law that the domestic application of the ICCPR in Hong Kong was not solely a matter for the legislature to decide but was one intimately bound up with the constitutional protection of human rights in the territory upon the PRC's resumption of sovereignty. This is evident from the text of Article 39 of the Basic Law:

Article 39 is a complex provision that sets out a constitutional guarantee for the continuation of rights post-1997 and a duty for their effective incorporation into domestic law. It sets out four important propositions concerning the application of the ICCPR, in that (i) it would ‘remain in force’ and (ii) be domestically implemented, with (iii) the phrase ‘as applied to Hong Kong’ providing the basis for understanding the extent to which the ICCPR was constitutionally guaranteed in Hong Kong after the handover. Accordingly, where the ICCPR is implemented into domestic law, pursuant to Article 39(2) such legislation is (iv) endowed with a special legal status, treated as a ‘constitutional statute’, entrenched for the purpose of monitoring restrictions on the ICCPR arising from legislative or government acts.Footnote ²⁰ In short, Article 39 bestows a constitutional guarantee for the effective protection of the ICCPR post-1997, imposing a duty to incorporate the ICCPR ‘as applied to Hong Kong’, transforming such incorporating legislation into a constitutional instrument that can be used to review the legality of government and legislative acts. This reading of Article 39 is consistent with the approach of the Court of Final Appeal, that the HKBORO effects the incorporation of the ICCPR into domestic law and thus was constitutionally entrenched under Article 39 of the Basic Law.Footnote ²¹

Whilst the requirement of incorporation in Article 39 is reflective of dualist theory, it is clear from the phrase ‘as applied to Hong Kong’ that the legislature does not have total freedom to decide how the ICCPR would take effect domestically. Rather, this phrase envisages that the ICCPR takes a qualified form subject to its specific application to Hong Kong. The crucial issue is identifying what this phrase means. One view is that ‘as applied to Hong Kong’ reflects the domestic application of the ICCPR prior to 1 July 1997. The HKBORO was, after all, a piece of colonial legislation enacted in 1991, over six years before the Basic Law took effect. Accordingly, ‘as applied to Hong Kong’ may be said to constitutionally validate the continued application of the HKBORO after the handover.Footnote ²² This interpretation is erroneous. Given that the HKBORO had yet to be enacted during the Basic Law's promulgation, it would be nonsensical to interpret ‘as applied to Hong Kong’ as reflecting some pre-existing domestic legislative equivalent of the ICCPR.Footnote ²³ Moreover, the phrase first appeared in the Sino-British Joint Declaration of 1984, which provided that the ‘provisions of the [ICCPR] … as applied to Hong Kong shall remain in force’.Footnote ²⁴ Clearly both at the time of the Joint Declaration and the Basic Law's promulgation the HKBORO was yet to have the force of law nor was in the drafters' contemplation. This view also finds textual support in Article 39, in that the ICCPR ‘shall be implemented’, implying that it had yet to have been done so.Footnote ²⁵

A more appropriate interpretation of ‘as applied to Hong Kong’ is that it reflects how the ICCPR was extended to Hong Kong on the plane of international law. This interpretation is also explicable from the words in Article 39 that the ICCPR ‘shall remain in force’, which again can only be referring to an instrument that had the force of law at the time when Article 39 was drafted. During the Basic Law's promulgation in 1990, the ICCPR only applied to Hong Kong on the international plane. Whilst interpreting ‘as applied to Hong Kong’ to mean the ICCPR's international application to Hong Kong, there are some difficulties with this approach.Footnote ²⁶ Following the handover, the UK would no longer assume responsibility for Hong Kong under the ICCPR. Likewise during the Basic Law's promulgation the PRC was not a party to the ICCPR. Many commentators also expressed doubts as to whether the PRC would follow the formal accession of the ICCPR to ensure the continued application of the treaty to Hong Kong at the international level, causing further uncertainty.Footnote ²⁷ Unless Hong Kong could itself accede to the ICCPR, which was doubtful,Footnote ²⁸ the constitutional guarantee under Article 39 looked somewhat precarious; the ICCPR would no longer apply to Hong Kong on the international plane upon the PRC's resumption of sovereignty.

These difficulties can be avoided, however, by reading ‘as applied to Hong Kong’ to mean the historical application of the ICCPR to Hong Kong by the UK prior to the handover, rather than in terms of any contemporaneous application of the treaty to Hong Kong. This would mean taking into account the UK's 1976 ratification, together with reservations and interpretive declarations, when interpreting the scope of the ICCPR as constitutionally guaranteed under the Basic Law. Conversely, whether the PRC ratifies the ICCPR and extends its provisions to Hong Kong is immaterial to the constitutional guarantee under Article 39. Taking into account the purposes of the Basic Law, a historical interpretation of ‘as applied to Hong Kong’ is justified. A cornerstone principle of the Basic Law is the continuity of Hong Kong's ‘way of life’ after 1997.Footnote ²⁹ During the drafting of the Sino-British Joint Declaration, a paramount concern of the UK was to ensure that the protection of rights would be retained after the handover.Footnote ³⁰ Whilst the ICCPR had yet to be incorporated into domestic law during the Sino-British negotiation, the UK saw future incorporation of the ICCPR as a critical safeguard to ensure that respect for human rights and freedoms were maintained.Footnote ³¹

Further, the adoption of a historical interpretation of ‘as applied to Hong Kong’ best fits with a key purpose of the Basic Law, which was to confer on Hong Kong a ‘high degree of autonomy, except in defence and foreign affairs’.Footnote ³² If Article 39 is to be interpreted subject to a contemporaneous international application of the ICCPR to Hong Kong then, conceivably, it would be open to the PRC to ratify the ICCPR and extend the instrument to Hong Kong subject to reservations that go beyond those of the UK in 1976. Accordingly, this more restrictive application of the ICCPR to Hong Kong would narrow the scope of protection as a matter of domestic constitutional law, meaning that domestic Hong Kong courts would have to interpret constitutionally protected rights in line with the PRC's reservations. This is not a hypothetical concern. Upon ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) the PRC entered reservations affecting Hong Kong that materially departed from the UK reservations, particularly in restricting the right to trade union membership.Footnote ³³ In short, if the scope and content of the ICCPR ‘as applied to Hong Kong’ is subject to the PRC's ratification, this could undermine Hong Kong's autonomy and protection of human rights on the plane of domestic constitutional law.

It is not being suggested here that the PRC is required to assume international obligations on behalf of Hong Kong, nor that they must assume the exact same obligations the UK did for its then dependent territory in 1976.Footnote ³⁴ Rather, it has been argued that, at a domestic level, the Hong Kong Basic Law guarantees the constitutional protection of the ICCPR according to the UK's ratification of the treaty. The PRC may at some future date ratify the ICCPR on behalf of itself and Hong Kong subject to reservations greater in scope than those entered by the UK. However, such ratification would only impact on the attainment of ICCPR rights on the plane of international law. The PRC's ratification would not affect the scope of the constitutional guarantee under Article 39, this being subject to how the ICCPR was applied to Hong Kong by the UK in 1976.

However, the historical and international approach to interpreting Article 39 suggested here is open to criticism on the ground that it statically ties the protection of human rights in Hong Kong to the treaty commitments of the UK dating back to 1976. Consequently, such interpretation of Article 39 is both under-inclusive and over-inclusive in its protection of rights. It is under-inclusive because Hong Kong courts must observe the reservations entered by the UK, even though some of the reservations are formulated in very broad terms and thus undermine the protection of rights.Footnote ³⁵ More relevant for present purposes is the criticism that such an interpretive approach is over-inclusive in the protection of rights, in that it requires the courts to apply reservations that are not necessarily focused on the particular circumstances that pertain within Hong Kong. The effect is that a reservation, aimed primarily at addressing a domestic concern of the UK, does not take into account the circumstances in Hong Kong that may justify a more limited application of the ICCPR when interpreting the scope of the constitutional guarantee in Article 39. For example, as discussed below, the UK's immigration reservation was concerned with preserving British nationality laws that determined which colonial citizens could enter and remain in the UK. One judge has noted that the reservation has little relevance in Hong Kong given that the territory did not face an influx of British citizens in the 1970s claiming a right of abode in the territory.Footnote ³⁶ Yet Hong Kong does have its own ‘unique’ immigration pressures that have been used to justify the conferral of sweeping legal powers to the immigration authority, including the belief that those without the right to enter and remain should not be the recipients of rights to challenge immigration decisions.Footnote ³⁷ Therefore, ‘as applied to Hong Kong’ should not just pertain to the particular immigration problem faced by the UK upon ratification in 1976, but also include a consideration of the particular context in which these international commitments are to be domesticated as a constitutional guarantee in Hong Kong.

Taking into account the significance of Article 39 as a mechanism for the protection of rights, this criticism is misplaced. Li CJ observed in a seminal decision that Article 39 was ‘an important provision for the constitutional protection of individual rights'.Footnote ³⁸ The Court of Final Appeal has held that a generous approach should be taken to the interpretation of rights, which includes the application of Article 39.Footnote ³⁹ It would plainly be inconsistent with a generous approach to domesticate the ICCPR ‘as applied to Hong Kong’ in a way that provides a more extensive intrusion into rights than was intended in the reservations. If the drafters of the Basic Law had intended to absolutely exclude the application of the ICCPR to immigration control decisions then they should have provided for this expressly. Absent such an indication, the courts are limited to ascertaining the scope of the constitutional guarantee under Article 39 in accordance with the international application of the ICCPR to Hong Kong by the UK.

It follows that if the UK's ratification in 1976 provides the framework for understanding the scope of Hong Kong's ICCPR constitutional guarantee, then any legislation purporting to incorporate the ICCPR into domestic law must be faithful to this guarantee. The dualist belief that international law is irrelevant when examining the validity and scope of domestic incorporating legislation does not apply to Article 39. Thus, where legislation implements the ICCPR in a narrower sense than was applied in 1976, then the Hong Kong courts could invalidate such legislation on the basis that it undercuts rights that are guaranteed under Article 39. As a colonial era parliamentary draftsman asked rhetorically, ‘having regard to the constitutional obligations [Article 39] impose, would anyone suggest that the Legislative Council could validly amend without question the BORO so that thenceforth the enjoyment of the rights it recognizes would be confined to, say, one-legged dwarfs?’Footnote ⁴⁰ If so, the legislature would be determining the extent to which the impediment imposed by Article 39 operated. Therefore, Article 39 does not permit any greater inroads in the protection of ICCPR rights than that guaranteed by the UK upon ratification. The opposite is also true; if the ICCPR was incorporated into Hong Kong unreservedly then only those provisions that reflect the UK's 1976 application of the treaty would have constitutional status under Article 39. For example, if Hong Kong's Legislative Council sought to implement an ICCPR right that was subject to a UK reservation, such as the right to vote under Article 25(b), then this provision would not be constitutionally entrenched; it would simply amount to a statutory right subject to the principle of implied repeal like any other piece of ordinary legislation.

B. Judicial Interpretation of Section 11

Thus, the issue for determination is whether the HKBORO faithfully implements the ICCPR ‘as applied to Hong Kong’ in the particular context of immigration control. Section 11 of the HKBORO purports to give effect to the UK's reservation in domestic law, as follows:

The Hong Kong courts have held that section 11 applies the UK's reservation in domestic law.Footnote ⁴¹ As section 11 implements the ICCPR ‘as applied to Hong Kong’ accordingly this provision is compatible with Article 39 of the Basic Law.Footnote ⁴² Beyond this, the courts have also recognized that the reservation takes account of Hong Kong's ‘unique’ circumstances (economic success, population density and proximity to developing countries) that accordingly justify stringent immigration controls and a blanket exclusion of ICCPR rights in immigration matters.Footnote ⁴³ Without such a strict policy, Hong Kong would be ‘swamped with those who wish to enjoy its economic benefits’.Footnote ⁴⁴

The courts have, in different contexts, occasionally reviewed the validity or scope of the UK's immigration reservation. In colonial times, Jones J for the High Court found that the UK reservation was compatible with the ICCPR: as the ICCPR did not place restrictions on states from entering reservations, accordingly the reservation was consistent with the covenant's object and purpose.Footnote ⁴⁵ In more recent times, Reyes J at first instance in Ubamaka v Director of Immigration observed that the reservation did not limit the application of the ICCPR in Hong Kong where incompatible with a peremptory norm.Footnote ⁴⁶ Quoting from General Comment No 24, Reyes J noted that the ‘normal consequence of an unacceptable reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation’.Footnote ⁴⁷ Therefore, it would be impermissible to deport an individual where in conflict with a peremptory norm such as the prohibition on cruel, inhuman or degrading treatment or punishment (CIDTP). However the basis for invoking international law, and the extent to which it impacts upon interpretation of the Basic Law, was not explained.Footnote ⁴⁸ Reyes J's holding was rejected once Ubamaka reached the Court of Final Appeal. Citing International Tin Council, Ribeiro PJ observed that the Hong Kong courts do not have jurisdiction to pronounce on the validity or invalidity of the UK's ICCPR ratification as a matter of public international law.Footnote ⁴⁹

Aside from the occasional venture into international law and the broader context of the UK reservation, the Hong Kong courts have been largely content to resolve the meaning of section 11 by reference to its plain language. As the statutory intention was clear based on a literal interpretation there was no need to look at extrinsic materials. Section 11 should be construed ‘strictly in accordance with its plain meaning and effect’.Footnote ⁵⁰ The principle of legality, to read down statutory language to ensure compatibility with human rights law, was said to be inapplicable because there was no domestic constitutional provisions that compelled a narrow reading of section 11. Using international human rights instruments, such as General Comment No 24, to read down section 11 was deemed to be constitutionally impermissible given that the statutory language was unambiguous.Footnote ⁵¹

The exclusionary language in section 11 has been construed as a blanket denial of ICCPR rights insofar as immigration decisions are concerned.Footnote ⁵² The manifest instruction to the Director of Immigration is that, in applying Hong Kong's immigration laws, he is not bound by the provisions of the ICCPR.Footnote ⁵³ Much of the early case law focused on families separated as a consequence of strict immigration policy. Thus the wife of a Hong Kong permanent resident, herself a PRC citizen, could not invoke the right to a family life in challenging her deportation from the territory.Footnote ⁵⁴ Similarly, it would be the ‘height of absurdity’ if a Hong Kong permanent resident could successfully invoke the right to family life to resist the deportation of his wife, a non-resident.Footnote ⁵⁵ Section 11 has also been held to preclude reliance on the ICCPR where an alien has been denied entry to Hong Kong. Thus, when members of the Falun Gong from Taiwan were denied entry into Hong Kong they asserted that the right to a fair hearing under the ICCPR was denied. Relying on dictum from Lord Denning, the Court of First Instance noted that a core sovereign function is immigration control, embraced in section 11, and so relief was denied to the claimants.Footnote ⁵⁶

The courts have also found that the discretion of the immigration authority to regulate an alien's ‘stay’ is not fettered by the ICCPR. The phrase ‘stay’ has been found to cover the entire period, from arrival to departure that an alien is on Hong Kong soil, irrespective of his immigration status. Thus the ICCPR could not be relied on to challenge the government's stringent employment policy for refugees.Footnote ⁵⁷ This is because employment is closely bound up with the purpose for which a refugee is allowed in the territory. ‘Stay’ has also been construed to include a stay in a detention centre.Footnote ⁵⁸ Thus when 1,376 Vietnamese asylum seekers—some of whom had been detained for up to eight years pending removal—sought habeas corpus, they were unable to rely on the arbitrary detention provision in the ICCPR.Footnote ⁵⁹ This was because the detention decision was intimately bound up with the decision whether to remove the person from Hong Kong, thus covered squarely by section 11.Footnote ⁶⁰ Any other interpretation would lead to an absurdity: those who are detained, being illegal immigrants, would have their ICCPR rights protected whereas those who entered and remained in Hong Kong lawfully would not.Footnote ⁶¹

Recently, Hong Kong's highest court has ruled that there is one area where section 11 does not preclude the application of the ICCPR: the principle of non-refoulement where non-derogable rights are at stake. In Ubamaka, the Court of Final Appeal held that section 11 does not apply where non-derogable rights are engaged. Relying on Soering v United Kingdom, the court found that there exists an obligation under the ICCPR that precludes the return of an individual to a country where they are at risk of being subjected to CIDTP.Footnote ⁶² They arrived at this conclusion by reading an implied limitation into section 11. Section 5 of the HKBORO provided that Hong Kong could derogate from certain rights during a time of public emergency, but could not do so with respect to non-derogable rights. Accordingly, as there was an apparent conflict between sections 11 and 5, decisive weight had to be given to the non-derogable and absolute character of the rights protected.Footnote ⁶³ The Court of Final Appeal's approach differs materially from that adopted by Reyes J at first instance. Whilst Reyes J narrowed the scope of section 11 by assessing the compatibility of the UK's reservation with international law, the Court of Final Appeal simply treated the question as one of domestic statutory interpretation, taking into account certain presumptions of construction when two provisions are in apparent conflict.

To conclude this brief overview of current judicial interpretations of section 11, it can be seen that an exclusionary approach is taken. Save for where a non-derogable right is concerned, section 11 will apply to all decisions governing the entry, stay and departure of aliens in Hong Kong. The courts have shown a general reluctance to examine closely the terms of the UK's reservation and instead have emphasized Hong Kong's ‘unique circumstances’ as justification for the reservation ‘as applied to Hong Kong’. Similarly, the courts have simply read the plain text of section 11 as speaking to an unequivocal intent to confer on the authorities wide discretion in immigration control, without any need to take into account extrinsic materials and international law as relevant interpretive factors.

A. Meaning of the UK Reservation

It will be argued here that the Hong Kong court's current approach to interpretation of section 11, and the UK reservation that underpins it, is unjustified. Before arriving at this conclusion it is necessary to ascertain the meaning of the reservation. Section 11, as noted above, uses broad exclusionary language to preclude application of the ICCPR in all immigration matters. For section 11 to withstand constitutional scrutiny it is necessary to find that this statutory provision faithfully applied the reservation, both in content and scope, into Hong Kong's domestic law. The question therefore is whether the reservation intended to provide a blanket exclusion of the ICCPR in immigration matters in the same way as section 11 did.

It is immediately apparent that there are material textual differences between the reservation and section 11. In particular, the reservation is targeted at Article 12(4) and ‘the other provisions of the Covenant’. By contrast, section 11 is drafted in more general terms and does not single out for non-application any particular ICCPR right. The best hope of reconciling these two provisions is to find that the reference in the reservation to ‘other provisions’ is tantamount to a blanket exclusion of all ICCPR rights whenever a decision is taken under immigration legislation. However, for the reasons that follow, such interpretation should be rejected.

A reservation, being a part of the treaty, is to be interpreted in accordance with its ordinary meaning in context and in light of its object and purpose.Footnote ⁶⁴ The special character of human rights treaties must also be taken into account when interpreting the scope of a reservation. In the Death Penalty case, the Inter-American Court of Human Rights noted that an interpretation of reservations that abrogates human rights in the narrowest sense should be preferred.Footnote ⁶⁵ In General Comment No 24, the Human Rights Committee has also noted that reservations must ‘not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto’.Footnote ⁶⁶ Clearly an interpretation of ‘other provisions’ as broadening the scope of the UK's reservation to encompass all ICCPR rights in all circumstances pertaining to immigration control would greatly impair the attainment of rights under the covenant.Footnote ⁶⁷ Rather, it is submitted that the reference to Article 12(4) is of particular importance in placing interpretive constraints on the scope of the reservation. Thus, reference to ‘of the other provisions of the Covenant’ must be interpreted to mean other provisions that have the same character and effect of Article 12(4).

This interpretation of the reservation is consistent with the UK's own justification for the reservation provided to the Human Rights Committee.Footnote ⁶⁸ As the UK acknowledges, the reservation was entered because of uncertainty over the meaning of Article 12(4) and to protect domestic legislative enactments concerning British nationality laws that defined who had the right of abode in the UK. The following justification furnished by the UK most recently in its seventh periodic report is probative evidence as to the proper scope and effect of the reservation:Footnote ⁶⁹

As the UK note, Article 12(4) is uncertain in its terms, raising implications for the compatibility of British nationality laws restricting who could enter and remain in the UK. Article 12(4) guarantees that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’. In General Comment No 27 the Human Rights Committee noted that Article 12(4) does not distinguish between nationals and aliens (‘no one’).Footnote ⁷⁰ Thus, the scope of this right depends on how the phrase ‘own country’ is interpreted. If this phrase were simply declaratory of a government's formal determination of an individual's nationality, then this would provide greater certainty over the meaning of Article 12(4). However, ‘own country’ is to be interpreted objectively based on a broader set of considerations than formal nationality status.Footnote ⁷¹ In particular, it was open to the drafters of the ICCPR to embrace the language used in Protocol 4 to the ECHR, which provided a ‘right to enter the territory of the state of which he is a national’.Footnote ⁷² Indeed, Canada even sought an amendment (supported by the UK) to Article 12(4) so that only nationals could invoke the right.Footnote ⁷³ Still, the ICCPR drafters intentionally omitted reference to nationality.Footnote ⁷⁴

It remained uncertain, however, as to the types of individuals aside from nationals who could place reliance on Article 12(4).Footnote ⁷⁵ The Human Rights Committee has observed that the provision is broadly conceived and requires an assessment of a number of factors beyond formal nationality status. In particular, Article 12(4) could assist those individuals who demonstrate a ‘close and enduring connection’ and ‘special ties’ to a country, including those ‘whose country of nationality has been incorporated or transferred to another national entity’.Footnote ⁷⁶ Article 12(4) might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.Footnote ⁷⁷ Thus, the words ‘own country’ in Article 12(4) invite consideration of such matters as long-standing residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere.Footnote ⁷⁸ This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. In more recent pronouncements, the Human Rights Committee has noted that the mere fact that a person has dual nationality is of no importance, given that the terminology adopted in Article 12(4) is broader than nationality.Footnote ⁷⁹

The uncertain ambit of Article 12(4) was problematic given the increased immigration into the UK from its former colonies after decolonization.Footnote ⁸⁰ The UK's various legislative solutions to the immigration ‘problem’ are well documented.Footnote ⁸¹ At one point, all British subjects from the colonies and dependencies had the right to enter and remain in the UK without restriction.Footnote ⁸² However, after 1962, colonial UK citizens were subject to immigration control, first with the introduction of a limited voucher system and then qualifications on those who could settle in the UK based on an ancestry requirement. Pursuant to section 1 of the Commonwealth Immigrants Act 1968, colonial citizens with a UK parent or grandparent were free from immigration control whereas those without such British ancestry were not automatically eligible to settle in the UK and were reclassified as ‘aliens’. Whilst purporting to be of general application to all colonial UK citizens, the legislation was prompted by fears that up to 200,000 East African Asians, victims of the ‘Africanization’ policy, would seek to settle in the UK.Footnote ⁸³

During cabinet and parliamentary debate on the 1968 Bill the potential incompatibility of the new ancestry requirement with the ICCPR and other sources of international human rights law was raised. In a memorandum the Home Office specifically referred to Article 12(4), noting that it might be a breach of this provision to deny a citizen of the right to enter his own country.Footnote ⁸⁴ The Home Secretary during a Cabinet meeting noted that the ‘various international conventions which we have signed or ratified [make] it difficult for us to deny entry to these people’.Footnote ⁸⁵ The Attorney General suggested that the Bill's proposed distinction in relation to the relevant international agreements, including the ICCPR, ‘would be difficult but not impossible’ to justify, with the most hopeful argument being that the ‘the persons to be dealt with, although technically our nationals, are not so closely connected with this country as they can be said to “belong” to it’.Footnote ⁸⁶ Thus, the potential incompatibility of any legislative reform to British nationality laws with the ICCPR was well recognized, and accordingly it was noted during Cabinet discussions that the accession to the ICCPR should be delayed until it could be seen whether legislation was required to restrict colonial UK citizens from entering the UK.Footnote ⁸⁷ Parliamentarians also raised concerns about the ancestry requirement, noting its discriminatory character and inconsistency with conventional and customary international law.Footnote ⁸⁸

Indeed, the reluctance of the UK to assume the obligations under Article 12(4) and other provisions of the ICCPR was also undoubtedly shaped by an important decision of the European Commission of Human Rights. In East African Asians v United Kingdom the applicants challenged the legality of the ancestry requirement set out in the 1968 Act.Footnote ⁸⁹ They argued that the legislation was discriminatory on racial grounds, as it was patently targeted at those who were unlikely to meet the ancestry requirement. Given that many of their wives had already settled in the UK under the preceding statutory regime, the applicants also argued that they were denied the right to a family life. Before the Commission, the UK strenuously argued that the applicants could not use the ECHR to assert a right to enter the UK given that it had not signed Protocol 4, which prohibited the state from refusing entry to its nationals.Footnote ⁹⁰ However, it was held that the non-extension of the protocol to the UK did not prevent the applicants from challenging the ancestry requirement based on other rights in the ECHR. As a result, the Commission noted that the ancestry requirement, in downgrading the citizenship status of the applicants, amounted to degrading treatment and a breach of the right to family life.

The definitional uncertainty of Article 12(4) ICCPR, along with the events surrounding the Commonwealth Immigrants Act 1968, provides the necessary context for understanding the UK's immigration reservation to the ICCPR in 1976. There is clear evidence that Article 12(4), in conferring rights on those who did not possess formal nationality but could evince strong ties to a country, was seen as problematic in the context of the UK's reclassification of British residency rights. It provided a potential avenue for colonial UK citizens, many of whom lost the right to settle in the UK as a result of the 1968 Act, to assert that the UK was their ‘own country’. Furthermore, the outcome in East African Asians made clear that it was unnecessary for the UK to be a party to Protocol 4 of the ECHR for the applicants to be able to challenge a decision to deny them entry to the UK; there were other human rights that could be used by a non-national to show that their link to a country justified their right to enter and remain in the country. Given the outcome in East African Asians, it was plain that a future reservation directed solely at Article 12(4) would be insufficient for British purposes. A reference to ‘other provisions’ was necessary to preclude quasi-nationality based claims that could conceivably be made under other provisions of the ICCPR, such as those grounded in Article 7 (prohibition on CIDTP) and Article 27 (right to a family). In short, the preceding analysis supports a narrow interpretation of the UK's reservation. The reservation does indeed prevent applicants from relying on Article 12(4). Yet, in defining what ‘other provisions’ the reservation applies to, this should be taken to mean those other provisions that have the effect, as exemplified in East African Asians, of supporting a claim for a non-national to enter and remain in the UK.

B. A Broader Interpretation of the Reservation Based on Hong Kong's ‘Realities’

Whilst there is evidence that the purpose of the reservation was to preserve British nationality laws concerning who was eligible for right of abode, the UK has observed that the reservation was also designed to take into account the particular circumstances of Hong Kong. According to explanatory notes on the 1984 Sino-British Joint Declaration, the UK noted that its reservations ‘took account of the realities of the social and economic conditions in Hong Kong: for example, in relation to Hong Kong the United Kingdom made reservations relating to immigration and to the deportation of aliens'.Footnote ⁹¹ Accordingly to interpret the reservation so narrowly would have no bearing on Hong Kong given that it was not at any point faced with an influx of British colonial citizens asserting a right of abode.Footnote ⁹² This has led the local courts to conclude that the reservation, taking account of Hong Kong's circumstances, broadly excludes the application of the ICCPR in the area of immigration control.

However, this conclusion is a quantum leap. Unfortunately, the UK did not explain what local ‘realities’ the reservation was designed to take into account in respect of Hong Kong and whether such circumstances justified a broader reading of the reservation than argued here. Yet, as observed by the Inter-American Court of Human Rights, the interpretation of a reservation must be guided by the ‘primacy of the text’, rather than with regard to any ex post facto rationalization by the state as to the scope of the reservation.Footnote ⁹³ The reservation is UK-centric, it concerns ‘entry into, stay in and departure from the United Kingdom’.Footnote ⁹⁴ In the very final sentence, the UK ‘also reserves a similar right in regard to each of its dependent territories’. It is noteworthy that the text of the reservation does not distinguish Hong Kong from its other dependent territories, indicating that Hong Kong's particular characteristics were immaterial to how this reservation was to be applied. Based on a plain reading of the text, it reserves a ‘similar right’ to the dependent territories as it does to the UK, that is, to define whom it classifies as its nationals without being restricted by Article 12(4) and other provisions of the ICCPR that could impact on this power. The reservation cannot be used to justify for Hong Kong a broader exclusion of the ICCPR than was reserved to the UK. Even if, as the UK suggested, the reservation was devised to also address Hong Kong's local needs, it is not immediately clear why this would justify the outright disapplication of the ICCPR in immigration matters. If Hong Kong's local needs justified such an extreme course of action then, consistent with interpretive principles applicable to human rights treaties, the reservation should explicitly provide for this.

The principle of effectiveness in treaty interpretation also undermines the conclusion that the reservation was designed to broadly exclude the application of the ICCPR in matters concerned with immigration control. A treaty, including a reservation, must be interpreted meaningfully; if a provision is open to two interpretations with one disabling a treaty provision from having effect, then the effective interpretation should be adopted.Footnote ⁹⁵ It is noteworthy that the UK entered another reservation pertaining to immigration powers, this time specifically for Hong Kong. The UK reserved ‘the right not to apply article 13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented’.Footnote ⁹⁶ Article 13 of the ICCPR confers a right on those aliens ‘lawfully within the territory’ to audi alteram partem. As the Human Rights Committee has noted, Articles 12(4) and 13 are readily divisible: whereas Article 12(4) relates to defining who has the right to enter a state, Article 13 concerns the procedure that aliens are entitled to before any decision on deportation is made.Footnote ⁹⁷ However, if the UK's reservation to Article 12(4) and ‘other provisions’ provides a blanket exclusion of the ICCPR where immigration decisions are concerned this would render redundant the specific reservation to Article 13. The principle of effectiveness in treaty interpretation would therefore compel an interpretation of both of these reservations that ensures their continuing effect. This would not be achieved if the reservation to Article 12(4) and the ‘other provisions’ constituted a blanket exclusion of ICCPR rights.

Still, the notion that the interpretation placed on the reservation as argued for here would be irrelevant to Hong Kong's particular circumstances is erroneous. Much like the UK, Hong Kong was at the time leading up to the reservation undergoing legislative reform to define who had the right of abode in the territory.Footnote ⁹⁸ In 1971, some five years before the UK's ratification of the ICCPR, Hong Kong for the first time differentiated between local inhabitants and in certain cases made the right of abode conditional upon a continuous residence requirement.Footnote ⁹⁹ If Article 12(4) was applicable it could provide some inhabitants, who were deprived of the right to remain, with a basis to claim that Hong Kong was their ‘own country’, raising concerns over the compatibility of the new statutory immigration regime with the ICCPR. Further, a major concern of the Hong Kong authorities from the time of the reservation until recently was the phenomena of split families.Footnote ¹⁰⁰ A great many Hong Kong permanent residents had family in mainland China. Based on one estimate approximately 400,000 mainland Chinese in the adjoining provinces had relatives or family members in Hong Kong.Footnote ¹⁰¹ If Article 12(4) and related provisions remained applicable, it could conceivably provide a basis for these Chinese relatives to seek family reunification by asserting a right to enter and remain in Hong Kong. Indeed, much of the early litigation on section 11, discussed in part IIB above, addressed this very point. Therefore, it is clear that the reservation does have meaningful application to Hong Kong and the realities that pertained at the time of the UK's ratification of the ICCPR, given the need to protect the legislative arrangements in the territory concerning the right of abode.

Indeed, the narrow reading of the reservation argued for here is also in keeping with Hong Kong's new legal reality. If the reservation was designed to prevent British colonial passport holders from asserting a right to enter and remain in the UK, the reservation is of equal relevance to Hong Kong's situation following reunification with the PRC. After 1997, Hong Kong had a new sovereign and with this potential claims from mainland Chinese who may assert a right to enter and remain in Hong Kong on the basis that it was their ‘own country’. The Hong Kong Basic Law sought to limit eligibility for permanent residency from mainland China to an enumerated category, making such right also conditional upon approval from the Beijing authorities.Footnote ¹⁰² It would thus undermine the constitutional scheme concerning the right of abode if mainland Chinese could invoke the ICCPR to enter and remain in Hong Kong. Thus the reservation, which was entered in order to protect British nationality laws at a time when many British colonial passport holders lost the right of abode in the UK, was on all fours with Hong Kong's new constitutional reality: that Chinese passport holders could claim a right to enter and remain in Hong Kong post-1997 on the basis of Article 12(4) of the ICCPR.

C. Reviewing the Implementation of the UK Reservation in Hong Kong Courts

Whilst there is good reason to support the argument that section 11 does not faithfully implement the UK's reservation, a key obstacle identified by Ribeiro PJ in Ubamaka, relying on Tin Council, was that the municipal courts have no role in reviewing the UK's reservation. Instead the courts have been content to resolve disputes over the scope of section 11 by favouring the clear language used in the provision, thus excluding the use of international law and extrinsic materials as an aid to statutory interpretation. It is therefore necessary to examine the limits of justiciability and particularly the role of the Hong Kong courts in reviewing international acts of a foreign sovereign.

Tin Council represents the orthodox dualist perspective that a treaty cannot be invoked in a municipal court absent incorporation.Footnote ¹⁰³ The doctrine has been followed in Hong Kong. Thus in Re Chong Bing Keong, the domestic courts could not rule that an extradition treaty concluded between Hong Kong and the United States was invalid, as this would be tantamount to adjudicating ‘upon treaty obligations on the plane of international law’.Footnote ¹⁰⁴ Yet, whilst the ratio of Tin Council reflects an important common law principle, its specific relevance to how the Hong Kong courts should approach review of the UK's reservation is open to question.

In particular, the ratio of Tin Council is premised on there being no ascertainable domestic legal standards that can be used to adjudicate what would otherwise be a dispute about international law.Footnote ¹⁰⁵ Yet, as noted in part IIA above, there is a clear domestic legal basis for the Hong Kong courts to review the terms of the UK's reservation. The courts have a constitutional mandate to interpret the phrase ‘as applied to Hong Kong’ in Article 39 of the Basic Law. This phrase must be read in the context of the UK's ratification of the ICCPR in 1976. It necessarily calls for the courts to review the scope of the UK's reservation as an exercise in constitutional interpretation to identify the extent to which the ICCPR is constitutionally guaranteed in Hong Kong. Review of the reservation is thus driven by considerations of efficacy, as the courts would be unable to properly ascertain the scope of Hong Kong's obligations under the ICCPR without examining the terms of the reservation.Footnote ¹⁰⁶ Indeed, the close involvement of the British as an architect of Hong Kong's post-1997 constitutional settlement allays any concerns that the local courts are overstepping their jurisdiction in reviewing the acts of a foreign sovereign. As the history of the ICCPR's application to Hong Kong makes clear, it was the UK's intention that its ratification of the ICCPR would provide the framework for certain constitutional rights in Hong Kong. In particular, the continued applicability of the ICCPR ‘as applied to Hong Kong’, which originated as a bilateral treaty obligation under the Sino-British Joint Declaration, was constitutionally entrenched by the British colonial government in the Letters Patent. As Hong Kong's principal legal instrument under colonial rule, the Letters Patent provided the courts with the competence to engage in constitutional review.Footnote ¹⁰⁷ Thus, it was within the UK's contemplation that the continued applicability of the ICCPR to Hong Kong was not simply a bilateral treaty commitment but rather one that was to be given a domestic constitutional foothold and subject to interpretation by the courts.

Even so, there has been a recent trend away from using the restrictive approach in Tin Council where human rights treaties are concerned, raising questions as to whether this authority remains good law.Footnote ¹⁰⁸ The decisions of the Privy Council in two cases concerning condemned prisoners from Caribbean states may suggest a shift in approach. The Privy Council held that the prisoners could not be executed in Trinidad and Jamaica respectively until a determination of the Inter-American Human Rights Committee, whose jurisdiction depended on a treaty that had yet to be incorporated into the domestic laws of the Caribbean states.Footnote ¹⁰⁹ As Lord Steyn has observed, the rationale for the principle enunciated in Tin Council is that the executive branch should not be able to expand its domestic legal powers by invoking international legal instruments, thereby abrogating the rights and freedoms of individuals. However, this restrictive principle is open to question where an unincorporated treaty serves to expand individual rights.Footnote ¹¹⁰ In these instances, there is a stronger mandate for the courts to use unincorporated human rights instruments to constrain executive and legislative power. Indeed, given the rationale behind Tin Council, using this authority to avoid review of the UK reservation leads to paradoxical results. That is, a consequence of not properly reviewing the UK's reservation is that the courts accept the validity of section 11, a provision that drastically expands the domestic legal powers of the Hong Kong executive branch beyond those contemplated in the reservation itself.

Given that the Hong Kong courts may review the terms of the UK's reservation, does this mean that they may also question the reservation's validity? The argument in this paper has assumed that the reservation was valid, instead choosing to focus on whether the reservation was faithfully implemented into Hong Kong law by virtue of section 11. Yet it remains instructive to briefly examine a more radical approach, adopted by Reyes J in Ubamaka, where the compatibility of the reservation with the object and purpose of the ICCPR was examined. This led to the outcome that the reservation, because it offended a peremptory norm of international law, was to be severed from the ICCPR, such that the constitutional guarantee under Article 39 would not include restrictions on the application of the treaty in the field of immigration control.Footnote ¹¹¹ From a domestic perspective, it may be argued that Reyes J's approach was a justified exercise of the constitutional jurisdiction under Article 39 of the Basic Law for the same reasons of efficacy noted above: that is, to fully determine the scope of the obligations under the ICCPR ‘as applied to Hong Kong’ it necessarily follows that the court must ascertain the validity of the reservation.

A potential difficulty, however, in inferring a constitutional power to invalidate the reservation is apparent when having regard to the purpose behind Article 39, which provides that the ICCPR ‘as applied to Hong Kong shall remain in force’. These words imply the continuity of the ICCPR, judged in light of the UK's extension of the treaty to Hong Kong prior to reunification in 1997. Given this presumption of treaty continuity it was almost certainly not within the contemplation of the Basic Law drafters that the Hong Kong courts could assess the validity of a treaty reservation when giving effect to Article 39. This is explicable from the fact that during the Basic Law's drafting and promulgation (1984–90) there remained some doubt as to the legal consequence of a finding that a reservation was inconsistent with the object and purpose of a treaty. Following a contractual approach to treaties, a leading view was that a state's reservation formed an integral part of its consent to be bound.Footnote ¹¹² Accordingly, a challenge to the reservation would also be a challenge to the very ratification of the treaty itself, thus undermining the presumption in Article 39 that the ICCPR ‘as applied to Hong Kong’ would remain in force.

Furthermore, a temporal analysis of international law at the time of the Basic Law's drafting and promulgation also casts doubt on any power of the Hong Kong courts to judge the validity of the reservation. The Human Rights Committee's General Comment 24, issued in 1994, was significant in two ways. First, the validity of a reservation was to be decided objectively by examining its compatibility with the ICCPR's object and purpose. The views of contracting states, the traditional basis for assessing reservation validity, was deemed irrelevant to human rights treaties given the absence of inter-state reciprocity.Footnote ¹¹³ Second, given that the validity of reservations was to be decided objectively, it ‘necessarily falls’ to the Committee to assess the compatibility of reservations with the ICCPR.Footnote ¹¹⁴General Comment No 24 has proved influential in shaping the future work of the Human Rights Committee, yet its key claims were once controversial. The US criticized the Committee for rejecting ‘the established rules of interpretation of treaties’ and for divesting ‘State parties of any role in determining the meaning of the Covenant’.Footnote ¹¹⁵ Similarly, the UK noted that the ‘argument that the existing rules of international law are inadequate to cope with human rights treaties rests … on a mistaken assumption’.Footnote ¹¹⁶ Scholars have also cast doubt on the legal basis for the Committee's conclusions at the time the comment was issued.Footnote ¹¹⁷

This historical analysis is important in the context of Hong Kong's Basic Law and the scope of Article 39. Even though General Comment No 24 may have since gained in legitimacy together with the acquiescence of contracting parties, in assessing how the ICCPR was ‘applied to Hong Kong’ it is necessary to examine the status of international law at the time when the Basic Law was drafted and promulgated. If, at the time of the Basic Law's promulgation in 1990, the established mechanism for assessing the validity of reservations under the ICCPR was that of inter-state objections, then it could not be said that it was within the contemplation of the drafters of Article 39 that the validity of the reservations was to be adjudged according to an objective standard as proposed by the Committee in 1994. Therefore, in assessing the scope of the court's constitutional jurisdiction under Article 39 a meaningful distinction is to be drawn between interpretation and validity. Whilst the courts can interpret the scope of the reservation, it would be beyond their competencies to challenge the reservation's validity as a matter of international law. Thus, it is not possible for the Hong Kong courts to decide that the reservation is incompatible with international law, but it is within the court's constitutional function to interpret the scope of the reservation in so far as it relates to the constitutional guarantee that the ICCPR shall be part of Hong Kong domestic law.

So far, as noted above, the courts in Hong Kong have used the clarity of the language in section 11 to justify the blanket exclusion of the ICCPR in matters concerned with immigration control. In this respect, the court's approach adheres to the principles espoused in the seminal English authority of Brind that limits the use of international law as an interpretive tool only to instances where statutory terminology is ambiguous.Footnote ¹¹⁸ Absent ambiguity, it would be without constitutional justification to use unincorporated international law to limit or affect the meaning of statutory provisions that are clear in their terms. Despite some support for a broader interpretive principle from New Zealand jurisprudence, it is generally accepted that for international norms to furnish a basis to apply a stronger presumption in statutory interpretation they must first have a constitutional status in domestic law.Footnote ¹¹⁹

However, the Brind principle is inapplicable insofar as the interpretation of section 11 of the HKBORO is concerned. As argued in part IIA above, Article 39 provides the courts with a constitutional jurisdiction to examine the compatibility of legislation that purports to implement the ICCPR. Where such implementing legislation is inconsistent with the guarantee in Article 39 of the Basic Law, that the ICCPR would be incorporated ‘as applied to Hong Kong’, then the courts may adopt a remedial interpretation to avoid incompatibility with the constitutional guarantee, or alternatively, sever section 11 from the HKBORO if a rights-compliant reading of this provision is not possible. Indeed, it is interesting to note that the courts have generally not disputed the effect of Article 39 and the jurisdiction it confers on the courts to invalidate or read down a legislative provision that does not faithfully incorporate the ICCPR.Footnote ¹²⁰ Thus unlike the Brind principle, which was justified by the need to preserve parliamentary supremacy, the unique constitutional dynamic of Article 39 justifies the Hong Kong courts to invalidate or disregard the clear statutory language in section 11 in order to ensure that the legislation incorporating the ICCPR does not abrogate rights more extensively than was provided for in the UK's ratification. Conversely, the courts are abdicating their constitutional responsibility under Article 39 in falling back on the plain language of section 11 to justify a blanket denial of ICCPR rights in immigration matters. It is not the clarity in which the Legislative Council has spoken that justifies section 11, but rather the extent to which it is an accurate depiction of the UK's reservation in domestic law.

Therefore, section 11 should be subjected to a remedial interpretation so that it goes no further than the UK reservation in excluding rights in the context of immigration control. This would mean limiting the application of section 11 in its effect so that it only prevents a person from using Article 12(4) of the ICCPR to assert a right to enter and remain in Hong Kong on the basis that it is their ‘own country’. Similarly, those persons who would assert a right to enter and remain based upon the other provisions of the ICCPR, such as the right to a family where family reunification is sought, would also validly be excluded by section 11. However, beyond these categories, persons subject to immigration control, such as destitute refugees and detained migrants, are the beneficiaries of rights under the ICCPR whilst they remain in Hong Kong's territory. In MA v Director of Immigration, as discussed above, the remedial interpretation sought here would have enabled the applicants, who wanted to work pending resettlement to a safe third country, to use the ICCPR to challenge the validity of the authority's stringent work authorization policy. Thus, whilst section 11 will continue to operate in instances where a person without the right of abode asserts a right to enter and remain in Hong Kong, this provision would not exclude claims from those persons who assert rights under the ICCPR for the time that they are in the territory.