Succession by Estoppel: Hong Kong's Succession to the ICCPR

Abstract

On July 1, 1997, China resumed sovereignty over Hong Kong under the "one country, two systems" framework. Under this unprecedented framework, Hong Kong retains for fifty years its economic, social, political, and legal systems, which are distinctively different from those practiced in other parts of China. Driven in large measure by the need to preserve Hong Kong's distinctiveness while at the same time accommodating China's sovereignty, the one country, two systems framework allows China to experiment with federalism. As with other federal systems, tension arises when the interests of the central government conflict with those of the local government. Given China's disappointing human rights record and the fact that China has yet to ratify the International Covenant on Civil and Political Rights ("ICCPR" or "Covenant"), the succession of the ICCPR in Hong Kong poses one of the most vexatious questions since Hong Kong's reunification with China.

Even though China's recent accession to the ICCPR undoubtedly alleviates some of the tension posed by the uncertainty over the succession issue, a number of questions still remain. While China acceded to the ICCPR without making any reservations, Britain included several reservations when it ratified the ICCPR in 1976. In addition, the Sino-British Joint Declaration ("Joint Declaration") provides only for the continuation of the ICCPR as applied to Hong Kong. Thus, it is questionable whether the ICCPR applies to Hong Kong subject to those reservations previously adopted by Britain. Furthermore, conflicts with respect to the interpretation and enforcement of the Covenant may arise in the future, for "[t]he ethos and the scope of the ICCPR sit uneasily with the Chinese concept of rights." Whenever such conflicts arise, it is necessary to determine whether Hong Kong succeeded to the Covenant. In fact, the resolution of the succession question will determine whether Hong Kong has an obligation to submit an independent report to the United Nations Human Rights Committee ("HRC").

This Article argues that Hong Kong suceeded to the ICCPR and the reporting obligations under the Covenant. Part I of the Article traces the development of the ICCPR in Hong Kong before 1997. This development is important because the Joint Declaration provides only for the continuation of the ICCPR as applied to Hong Kong before the transition. Parts II and III examine whether Hong Kong succeeded to the ICCPR. Since the Covenant is ambiguous as to whether the contracting parties are limited to sovereign states, Part II evaluates whether Hong Kong satisfies the membership requirement as stipulated in Article 48(1) of the Covenant. By examining Hong Kong's statehood under both the declaratory and constitutive theories, this Part argues that Hong Kong has a very strong claim to statehood, thus satisfying the membership requirement of the Covenant.

Part III then examines the three dominant state succession theories that may be applicable to Hong Kong. Due to the one country, two systems framework, none of these theories adequately addresses Hong Kong's unique situation. Utilizing the estoppel theory, this Part argues that Hong Kong succeeded to the ICCPR by virtue of the international community's recognition of the legitimacy of the Joint Declaration and the HRC's insistence that the Covenant continues in Hong Kong after 1997.

Based on the premise that Hong Kong succeeded to the ICCPR, Part IV analyses Hong Kong's reporting obligations under the Covenant. This Part concludes that Hong Kong, by virtue of its succession to the ICCPR, has an obligation to submit an independent report to the HRC regardless of China's policy. If China does not allow Hong Kong to submit a separate and independent report, Hong Kong should assume this obligation under the name "Hong Kong, China."