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State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights

Published online by Cambridge University Press:  17 January 2008

Johannes Chan
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Extract

In 1976 the United Kingdom ratified the International Covenant on Civil and Political Rights (ICCPR) and extended it to Hong Kong. Under the Covenant the United Kingdom assumed an obligation to submit periodic reports to the Human Rights Committee on the measures it has adopted to give effect to the rights recognised by the Covenant and on the progress made in the enjoyment of these rights.1 The United Kingdom has submitted four periodic reports on Hong Kong, in 1978,2 1988,3 19914 and 1995.5

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 4 , October 1996 , pp. 928 - 946
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. Art.40.

2. CCPR/C/1/Add.37. It was considered by the Human Rights Committee (“HRC”) in 1979: CCPR/C/SR 161–164.Google Scholar

3. CCPR/C/32/Add.14, Annex, F, pp.62–101Google Scholar. The report was submitted four years after its due date. A supplementary report was contained in CCPR/C/32/Add.15, Annex, F, pp.6–9Google Scholar. They were considered by the HRC in Nov. 1988: CCPR/C/SR 855–857.

4. CCPR/C/58/Add.6 (1990). A supplementary report was submitted in 1991: CCPR/C/58/Add.11. They were considered by the HRC in 04. 1991: CCPR/C/SR 1045–1050.Google Scholar

5. CCPR/C/95/Add.5. It was considered by the HRC in Oct. 1995. In its concluding observation (CCPR/C/79/Add.57), the HRC requested the British government to submit a further brief report, by 31 May 1996, on new developments with regard to the enjoyment of human rights in Hong Kong, to be considered at its 58th session to be held in late Oct. 1996. This supplementary report was submitted in June 1996.

6. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong 1984, 1339 U.N.T.S. 36.Google Scholar

7. Under this notion of “one country, two systems”, Hong Kong will retain its capitalist system, its legal system, its social system and its previous lifestyle. Socialism will not be practised in Hong Kong, and Chinese national law, save as expressly stipulated in the Basic Law of the Hong Kong SAR, which was promulgated by the National People's Congress in Apr. 1990, would not apply in Hong Kong after 1997.

8. For a detailed treatment, see Jennings, R. and Watts, A. (Eds), Oppenheim's International Law, Vol.1 (9th edn, 1992), pp.208–240Google Scholar; Brownlie, I., Principles of Public Inter national Law (4th edn, 1990), pp.667–675Google Scholar; O'connell, D. P., State Succession in Municipal Law and International Law (1967), Vol.2, pp.14–17Google Scholar, and The Law of State Succession (1956), pp.7–8.Google Scholar

9. As rightly observed by Mullerson, State succession always occurs in politically highly sensitive contexts and the various theories of State succession are the outcomes of the conflicts between often diametrically opposite interests: see Mullerson, R., “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia” (1993) 421.C.L.Q. 473Google Scholar, and Beato, A., “Newly Independent and Separating States' Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union” (1994) 9 Am.U J.Int.L. and Policy 525, 544.Google Scholar

10. The Arbitration Commission of the Conference for Peace in Yugoslavia ruled that the former Socialist Federal Republic of Yugoslavia had been dissolved and ceased to exist. See also Security Council Res.757(1992) and 777(1992). In a number of opinions, the Arbitration Commission ruled that a number of new States, including the Republic of Bosnia-Herzegovina, the Republic of Croatia, the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Macedonia and the Republic of Slovenia, satisfied the requirement of Statehood, but none of these successor States could claim to be the sole successor of the former Yugoslavia or the former membership of the Socialist Federal Republic of Yugoslavia in any international organisation. The successor States must together settle all aspects of the succession by agreement. See Opinions No.1, 6, 7, 8, 9 and 10 (1992) 31 I.L.M. 1488–1526. I am grateful to Prof. Fred Morrison of the University of Minnesota, who drew my attention to the opinions of the Arbitration Commission. The Federal Republic of Yugoslavia (Serbia and Montenegro), however, insisted that it was a continuation of the former Socialist Federal Republic of Yugoslavia and refused to apply for new membership of the UN: see infra n.24. For a general discussion of the problems of treaty succession in the Eastern European States see Burdeau, G. and Stern, B. (Eds), Dissolution, Continuation el succession en Europe de l'est: Succession d'États el relations économiques Internationales (1994)Google Scholar, and Ruiz, H. and Boniface, P. (Eds), Succession d'États en Europe de l'est el l'Avenir de la Sécurité en Europe (1995).Google Scholar

11. The text of the decision is reproduced in (1992) 15 E.H.R.R. 234Google Scholar. The decision of the Chairman was confirmed by the plenary session held on 19 Oct. 1992: see CCPR/C/SR 1178. The summary records of the discussions of the plenary session are reproduced in (1992) 15 E.H.R.R. 233–243.Google Scholar

12. idem, p.234.

13. idem, p.235, para.11.

14. idem, p.236, para.13.

15. idem, p.241, para.44.

16. idem, p.237, para.16. Mrs Higgins (idem, p.238, para.26) and Mr Ando (idem, p.240, para.40) disagreed with such sweeping statements.

17. idem, p.239, para.31.

18. idem, p.237, para.21.

19. idem, p.236, para.14.

20. idem, p.238, para.22. Mr Wennergren disagreed (idem, p.240, para.38).

21. idem, p.241, para.47 (emphasis added).

22. The report of the Republic of Bosnia-Herzegovina was considered by the HRC on 3 Nov. 1992. See CCPR/C/SR 1200 and CCPR/C/79/Add.14 (28 Dec. 1992). The report of the Republic of Croatia was considered by the HRC on 4 Nov. 1992. See CCPR/C/SR 1201 and 1202 and CCPR/C/79/Add. 15 (28 Dec. 1992). The report of the Federal Republic of Yugosla via (Serbia and Montenegro) was considered by the HRC on 4 Nov. 1992. See CCPR/C/SR 1202 and 1202/Add.1 and CCPR/C/79/Add.16 (28 Dec. 1992). For the consideration of and comments on these reports, see UN Doc.A/48/40, Vol.1 (1993), pp.69–68 (Bosnia-Herzego vina. paras.311–332; Croatia, paras.333–362; Serbia and Montenegro, paras.363–389).Google Scholar

23. UN Doc.A/48/40, idem, p.73, para.332. Interestingly, no similar recommendation had been made in the HRC's comments on the reports of the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro).

24. The Federal Republic of Yugoslavia (Serbia and Montenegro) regarded itself as the continuation of the international, legal and political personality of the former Socialist Federal Republic of Yugoslavia and hence did not deposit any instrument of succession. This seems to have been accepted by the HRC. Thus, Yugoslavia remained a party to the ICCPR as at 30 June 1995 and the Federal Republic of Yugoslavia (Serbia and Montenegro) was reminded to present its Fourth Periodic Report to the HRC: CCPR/C/104 (1995). This claim by the Federal Republic of Yugoslavia was strongly objected to by the other successor States to the former Yugoslavia, which considered that the Federal Republic of Yugoslavia was a new State and could be a party to the ICCPR only on the basis of notification of succession. See UN Doc.A/50/160 (19 Apr. 1995) (Objection by the Republic of Croatia), UN Doc.A/49/ 853 (17 Feb. 1995) (Objection by the Republic of Bosnia-Herzegovina), and UN Doc.E/ CN.4/1995/122 (31 Jan. 1995) (Objection by the Republic of Slovenia). See also the reply of the Federal Republic of Yugoslavia: UN Doc.A/50/164 (25 Apr. 1995). By Res.757 and 777, the Security Council resolved that the former Yugoslavia had ceased to exist and the claim of the Federal Republic of Yugoslavia (Serbia and Montenegro) as the continuation of the former Yugoslavia had not been accepted: UN Doc.S/RES/757(1992) and UN Doc.S/RES/777(1992).

25. The Republic of Bosnia-Herzegovina deposited the instrument of succession to the ICCPR on 1 Sept. 1993, with effect from 6 Mar. 1992. The Republic of Croatia deposited the instrument of succession to the ICCPR on 12 Oct. 1992, with effect from 8 Oct. 1991. The Federal Republic of Yugoslavia (Serbia and Montenegro) has not deposited any instrument of succession, as it considered itself to be a continuation of the former Socialist Federal Republic of Yugoslavia: see supra n.24. The Republic of Slovenia deposited the instrument of succession on 1 July 1992, with effect from 25 June 1991. It submitted its initial report to the HRC on 1 Oct. 1993. The former Yugoslavia Republic of Macedonia deposited its instrument of succession on 18 Jan. 1994, with effect from 17 Sept. 1991. For the respective dates of entry into force of the ICCPR for these States, see UN Doc. A/49/40, Vol.1, pp.89–92.Google Scholar

26. Georgia and the Baltic States of Estonia, Latvia and Lithuania declared independence on 9 Apr. 1991. The remaining republics declared their independence on the following dates: Armenia, 23 Sept. 1991; Azerbaijan, 30 Aug. 1991; Belarus, 25 Aug. 1991; Kyrgyzstan, 31 Aug. 1991; Republic of Moldova, 27 Aug. 1991; Tajikistan, 9 Sept. 1991; Turkmenistan, 27 Oct. 1991; Ukraine, 24 Aug. 1991; Uzbekistan, 31 Aug. 1991. On 8 Dec. 1991 the Republics of Ukraine, Belarus, and Russia formally declared that the Soviet Union had disintegrated and announced the formation of the CIS. For those successor States which have become a party to the ICCPR see infra n.28.

27. UN Doc.A/48/40, Vol.1, p.16, para.41.Google Scholar

28. The dates of accession of these States are as follows: Armenia, 23 June 1993; Azerbaijan, 13 Aug. 1992; Estonia, 21 Oct. 1991; Georgia, 3 May 1994; Kyrgyzstan, 7 Oct. 1994; Latvia, 14 Apr. 1992; Lithuania, 20 Nov. 1991; Republic of Moldova, 26 Jan. 1993. The ICCPR entered into force three months after the date of accession for all these States. For historical reasons, Belarus and Ukraine had been parties to the ICCPR in their own right before the dissolution of the Soviet Union, and the Russian Federation was regarded as a continuing State of the former Soviet Union; their dates of ratification are Belarus, 12 Nov. 1973; Russian Federation, 16 Oct. 1973; Ukraine, 12 Nov. 1973. See UN Doc.A/49/40, Vol.1, pp.89–92 and Multilateral Treaties Deposited with the Secretary General: Status as at 31 December 1994, ST/LEG/SER.E/13, pp.117–118.Google Scholar

29. The initial report of Azerbaijan was considered by the HRC in its 51st session on 21 Jan. 1994: UN Doc.A/49/40, pp.50–52.Google Scholar The initial report of Estonia (CCPR/C/81/Add.5 and HRI/CORE/1/Add.50) was considered by the HRC at its 55th session (1455th and 1459th meeting) on 23 and 25 Oct. 95. The initial report of Latvia (CCPR/C/81/Add.1/Rev.1) was submitted on 12 July 1993, and had not been considered by the HRC by the end of 1995.

30. See Mullerson, , op. cit. supra n.9, at pp.480–482.Google Scholar

31. Noted by idem, p.479. Mullerson also pointed out (idem, p.489) that the practice of the successor States to the former Soviet Union did not confirm the automatic succession to treaties, although for practical reasons and under pressure from the world community the successor States have accepted most of the treaty obligations of their predecessor, subject to modifications which had to be negotiated and agreed.

32. For a more detailed discussion on the arrangement on succession to multilateral treaties of the former Soviet Union by the CIS see idem, pp.475–480.

33. UN Doc.A/49/40 (1994), p.51, para.294.Google Scholar

34. A special session was held on 19 and 20 Oct. 1995 for considering the report on Hong Kong in view of the imminent change of sovereignty. For the summary records, see ICCPR/SR/1451–1453.

35. Statement by the Chairperson on Behalf of the Human Rights Committee Relating to the Consideration of the Part of the Fourth Periodic Report of the United Kingdom Relating to Hong Kong, attached to the Concluding Observations of the Human Rights Committee on the Fourth Periodic Report of the United Kingdom Relating to Hong Kong, CCPR/C/79/ Add.57 (3 Nov. 1995) (reproduced in (1995) 3(2) I.H.R.R. 410). The Statement was read out by the Chairman at the Committee's 1453rd meeting on 20 Oct. 1995.

36. Adopted at the 42nd session, 1993: UN Doc.A/48/18. See also UN Doc.HRI/GEN/1/ Rev.1 (29 01. 1994), pp.66–67.Google Scholar

37. In respect of the States in the territory of former Yugoslavia, on 19 Mar. 1993 (42nd session): Report of the CERD, UN Doc.A/48/18 (15 09 1993), p.113; and in respect of the States in the territory of former Soviet Union, on 25 May 1994: E/CN.4/1995/80, para.9.Google Scholar

38. CHR Res.1993/23, adopted on 5 Mar. 1993; reproduced in (1994) 1(1) Int. H.R. Rep. 201.

39. CHR Res.1994/1916, adopted on 25 Feb. 1994. See also the Report of the Secretary-General on Succession of States in Respect of International Human Rights Treaties, submit ted to the Commission on Human Rights at its 51st session: UN Doc.E/CN.4/1995/80, also reproduced in (1995) 2(2) Int. H.R. Rep. 507.

40. Concluding Observations of the Committee on Economic, Social and Cultural Rights, adopted on 7 Dec. 1994, UN Doc.E/C.12/1994/19, paras.20 and 32.

41. It is unclear what such arrangements would be; the possible options are discussed below.

42. E/CN.4/1995/80, para. 10. This statement received express support from the Republic of Slovenia: UN Doc.E/CN.4/1995/122 (31 Jan. 1995).

43. Jayawickrama argued that the practices regarding the former States of Yugoslavia and Soviet Union support a new rule of international law that human rights treaties devolve with the territory: Jayawickrama, N., “Human Rights in Hong Kong: The Continued Applicability of the International Covenants” (1995) 25 H.K.L.J. 171–179Google Scholar. Williams noted that the Committee of Legal Advisors on Public International Law for the Council of Europe found it difficult to establish a general rule concerning succession to multilateral treaties (Extra ordinary Meeting, 16 Jan. 1992). While a number of legal advisers argued that the nature of the treaty was important and considered that, in cases such as human rights and navigation treaties, every successor State should be bound by the treaty obligations of the predecessor, Williams noted that this approach had no basis in State practice or in the Vienna Convention: Williams, P., “The Treaty Obligations of the Successor States of the former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?” (1994) 23 Denver J.Int.L. & Policy 1, 17–18.Google Scholar

44. Williams, idem, p.19, came to a similar conclusion regarding succession to bilateral treaties after a review of State practice. He concluded that there exists a presumption of continuity of treaty rights and obligations, but this presumption must be confirmed either by a binding action on behalf of the successor State or by an agreement between the successor State and the other party to the treaties.

45. This position was adopted when the British representatives appeared before the HRC in its consideration of the UK's Third Periodic Report on Hong Kong: CCPR/C/SR 1050, para.61.

46. CCPR/C/21/Rev.1/Add.6 (11 Nov. 1994). Para.11 provides: “The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essen tial to its object and purpose … The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Com mittee's role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee's competence to inter pret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.”

47. CCPR/C/SR 1050, para.61.

48. Statement of the Chairperson: CCPR/C/79/Add.57.

49. See Concluding Observations at the 53rd meeting (11 th session), held on 7 Dec. 1994: E/C.12/1994/22, para.20. See also A. Byrnes, “Will the Government Put Its Money Where Its Mouth Is? The Verdict of the UN Committee on Economic, Social and Cultural Rights on Hong Kong's Human Rights Record” (1995) 25 H.K.L.J. 156.

50. The Sino-British Joint Liaison Group was set up under Annex II to the Joint Declara tion to conduct consultations on the implementation of the Joint Declaration; to discuss matters relating to the smooth transfer of government in 1997; and to exchange information and conduct consultations on such subjects as may be agreed by the two sides.

51. LegCo Paper No.3367/93–94, App.B.

52. Eastern Express, 13 10. 1994.Google Scholar

53. A similar provision can be found in Art.153 of the Basic Law. It provides: “The application to the Hong Kong Special Administrative Region of international agreements to which the People's Republic of China is or becomes a party shall be decided by the Central People's Government, in accordance with the circumstances and needs of the Region, and after seeking the views of the government of the Region.

International agreements to which the People's Republic of China is not a party but which are implemented in Hong Kong may continue to be implemented in the Hong Kong special Administrative Region. The Central People's Government shall, as necessary, authorize or assist the government of the Region to make appropriate arrangements for the application to the Region of other relevant international agreements.”

54. CCPR/C/79/Add.57.

55. ILO Official Bulletin, Vol.73 (1990). Ser.A, No.1, pp.25–26.Google Scholar

56. The term “federal State” is not defined. If it is construed broadly, it may be argued that China, at least after 1997, is a federal State when part of its country, namely Hong Kong, is an autonomous region with its own legal, economic and social system, including even the power to issue its own currency.

57. See also Art.151 of the Basic Law.

58. A/C.3/L.1359, A/6465, 32 (para.106). See also Bossuyt, M., Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights (1987), p.741.Google Scholar

59. A/6546, para.114. See Bossuyt, ibid.

60. See Nowak, M., United Nations Covenant on Civil and Political Rights: CCPR Commentary (1993), p.632, para.5.Google Scholar

61. A/6546, para.115; Bossuyt, , op. cit. supra n.58, at p.742.Google Scholar

62. See Nowak, , op. cit. supra n.60, at p.633.Google Scholar

63. The phrase was first proposed by the UK: A/6546, para. 105, but the proposal was subsequently withdrawn in favour of an amendment made by the US. which preserved this phrase: A/6546, para. 109. See Bossuyt, , op. cit. supra n.58, at p.742.Google Scholar

64. See also Art.49(2), which provides thai the ICCPR shall be open to ratification by any“State”.

65. A/C.3/SR.1407, paras.9, 33, 34; A/C.3/SR.1408, paras.35, 39, 43; A/C.3/SR.1409, paras.7, 15, 19, 20, 56. At the 1258th plenary session of the General Assembly, the Secretary-General said that if he were to receive an instrument of accession from an area the status of which was unclear, he would refer it to the General Assembly for advice on the action which he should take: AyC.3/SR.1407, paras.38–39, 46; A/C.3/SR.1409, paras.12–13, 54. See also Bossuyt, , op. cit. supra n.58, at p.742.Google Scholar

66. Under the Joint Declaration, the Hong Kong SAR enjoys a high degree of autonomy. It has its own legal, social and economic system which is distinct from that of China. It has a distinct territory and applies its own immigration controls over the border, even vis-à-vis people from other parts of China. It enjoys considerable power over domestic affairs, including the authority to issue its own currency. However, it is China which is responsible for the foreign affairs relating to the SAR. It can only participate as a member of Chinese delegations in international organisations or conferences limited to States. Application of inter national treaties to the SAR will be decided by the Central People's Government, and the establishment of foreign consular and other official or semi-official missions in the SAR requires the approval of that Government. In the light of these provisions it would be difficult to regard the SAR as a “State”, even for the limited purpose of Art.48(1) of the ICCPR.

67. It is also highly doubtful if the General Assembly would be prepared to take such a politically sensitive move without assuring the acceptance of China in the first place. This is so even when mutual recognition as a State is not a prerequisite for participation in a human rights treaty: see A/C.3/SR.1409, para.32. See also Loizidou v. Turkey (1995) 20 E.H.R.R. 99, 125, para.41 in the context of the European Convention on Human Rights.Google Scholar

68. Arts.40–43.

69. Annual Report of the CERD, UN Doc.A/48/18, p.113 (15 09. 1993).CrossRefGoogle Scholar

70. CCPR/C/79/Add.57, para.4.

71. See, for example, Golderv. United Kingdom (1975) 1 EHRR 524 where the European Court of Human Rights justified the inference of a right of access to court from the right to fair hearing by the object and purpose of the European Convention on Human Rights and dismissed the relevance of the travaux préparatoires, and Campbell and Cosans v. United Kingdom (1983) 13 EHRR 441 where the Court also dismissed the travaux and based its conclusion on broad grounds of principle. See also Young, James and Webster v. United Kingdom (1982) 5 EHRR 201.

72. This argument was put forward by the Hong Kong and Macau Office of the State Council and the Ministry of Foreign Affairs of the People's Republic of China when the author, as a member of the delegation of the Hong Kong Bar Association, met them in Beijing in July 1996. The author, however, could not find any documentary evidence supporting the existence of such a promise by the British Government, and this alleged promise seems contradictory to the express position taken by the British Government before the Human Rights Committee: see supra n.45.

73. Ratified on 1 Apr. 1992.

74. Ratified on 4 Oct. 1988.

75. Ratified on 4 Nov. 1980.

76. Ratified on 29 Dec. 1981. At the time of ratification China declared that the previous signing and ratification of the Convention in the name of China by the Taiwan government was illegal and null and void.

77. CAT/7/Add.5. The report was considered by the HRC at its Apr. 1990 session: CAT/C/SR/50–51.

78. The additional report was submitted in 1992: CAT/C/7/Add.14. It was considered by the HRC in Apr. 1993: CAT/C/SR.146/Add.4.