Immunity in Hong Kong for Kleptocrats and Human Rights Violators

This contribution analyses the implications of the Kadi decision of the European Court of Justice of July 2013 and the Nada decision of the European Court of Human Rights of September 2013. Both decisions have given preference to human rights standards over United Nations Security Council (UNSC) sanctions stemming from the Resolution 1267 (1999) sanctions regime. However, they used very different techniques in coming to similar results, with implications for the effective enforcement of UNSC binding decisions and the unity of international law.

The third decision of the House of Lords in the Pinochet matter is significant, because the House of Lords upheld the majority view taken in the first decision: heads of state can, under certain circumstances, be held responsible for gross violations of human rights in the criminal courts of a foreign country. The decision is based on three main pillars. The Lords had, first, to clarify what constitutes an extradition crime under the Extradition Act 1989; second, to construct torture as an international crime; and, finally, to reject the plea of immunity of a former head of state in the context of the international crime of torture.

One noticeable coincidence in 2006 involved the deaths of three former heads of state: Saddam Hussein, Augusto Pinochet and Slobodan Milošević. Many past calendar years have marked the passing of multiple former heads of state but these three particular former leaders had all been subjected to judicial processes of one sort or another in respect of alleged widespread and systematic violations of human rights, arbitrary killings and – for two of them – genocide of their own or other peoples. In all three cases the deaths were linked in some way to the legal proceedings and evoked widespread dissatisfaction – Pinochet because he escaped trial, Hussein because the proceedings against him were fundamentally flawed and Milošević because he died before the four-year trial proceedings against him could be brought to a conclusion. Despite the obvious differences in judicial proceedings against all three accused, an emergent and common refrain has been to query whether any satisfactory trial of a former head of state is indeed possible.

One noticeable coincidence in 2006 involved the deaths of three former heads of state: Saddam Hussein, Augusto Pinochet and Slobodan Milosevic. Many past calendar years have marked the passing of multiple former heads of state but these three particular former leaders had all been subjected to judicial processes of one sort or another in respect of alleged widespread and systematic violations of human rights, arbitrary killings and - for two of them - genocide of their own or other peoples. In all three cases the deaths were linked in some way to the legal proceedings and evoked widespread dissatisfaction - Pinochet because he escaped trial, Hussein because the proceedings against him were fundamentally flawed and Milosevic because he died before the four-year trial proceedings against him could be brought to a conclusion. Despite the obvious differences in judicial proceedings against all three accused, an emergent and common refrain has been to query whether any satisfactory trial of a former head of state is indeed possible.

The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.

In 2023, the Hong Kong Court of Final Appeal (CFA) handed down a significant decision requiring the creation of an alternative legal framework to recognise same‐sex unions. The judgment marked the culmination of two decades of strategic litigation challenging various forms of sexual orientation discrimination in Hong Kong, yet it fell short of recognising same‐sex marriage. The CFA's rejection was based upon an originalist construction of the Hong Kong Basic Law, the city's ‘mini constitution’, alongside a comparative analysis of select supranational human rights regimes. This note reflects upon the interpretive techniques used by the CFA and interrogates its reasons for denying the existence of a constitutional right to same‐sex marriage in Hong Kong. It argues that the CFA's use of an originalist construction was misplaced and inconsistent with its prior jurisprudence. The note also reflects on the CFA's selective use of comparative and international law, and the hazards associated with using external sources to control the interpretation of domestic public law norms.

This article assesses whether the United Nations Security Council must respect human rights under international law when acting under Chapter VII of the United Nations Charter. It argues that the Security Council has to respect human rights enshrined in those human rights treaties drawn up under the United Nations’ auspices and in non-peremptory customary international law, when this is not incompatible with the Security Council’s objective of maintaining or restoring international peace and security. The analysis also argues however that the Security Council must comply with peremptory international human rights, with no exception. The paper concludes that Chapter VII action by the Security Council is limited only to a small extent by international human rights standards.

Typically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.

Hong Kong offers a unique perspective and makes a distinctive contribution to the dialogue on human rights and criminal evidence. For more than 150 years, Hong Kong was a British colony with final appeals heard by the Judicial Committee of the Privy Council in London. Criminal trials in the colony were modeled on those in English courts. On 1 July 1997, Hong Kong became the only common law jurisdiction under Chinese sovereignty. Colonial appeals to London were abolished, and Hong Kong established its own Court of Final Appeal (CFA) with a mechanism that allowed visiting foreign judges to hear cases as Hong Kong judges. This chapter explores the evolution and development of human rights standards in Hong Kong criminal trials post-1997. It will be shown that the Privy Council’s legacy continues to live on in the evolving jurisprudence of the CFA, which has assumed the mantle of protector of defendants’ rights and interests. Far from rolling back any of the previous human rights standards, the CFA has extended them to other areas by employing traditional common law discourse and initiating new constitutional developments, though its general approach in relation to remedies for constitutional breaches has been pragmatic and cautious.

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

Aliens — Refugees — Refugee status — Grounds for denial — Acts contrary to the purposes and principles of the United Nations — Geneva Convention relating to the Status of Refugees, 1951, Article 1(F) (c) — Former Head of State — Scope of responsibility for human rights violations committed whilst he was President — Whether justifying denial of refugee status — Wife of former Head of State — Whether her fear of persecution based exclusively on human rights violations committed whilst her husband was President — Whether such circumstances justifying denial of her refugee status — The law of France

599Governments — Change of government — Effects — Former Head of State — Status in United States law — Whether entitled to immunityState immunity — Head of State's immunity — Nature and purpose — Whether right of the State or the individual — Waiver — Whether capable of being waived by State against wishes of individual — Former Head of State — Waiver of immunity by current governmentDiplomatic relations — Immunity — Head of State — Nature of Head of State's immunity — Waiver — Waiver of immunity of former Head of State by current government — The law of the United States

"Apres Moi Le Deluge"? Judicial Review in Hong Kong Since Britain Relinquished Sovereignty

How to Interpret, and Not Interpret, the Basic Law of Hong Kong

This article explores the role of international law in Hong Kong’s Court of Final Appeal (CFA). The CFA makes extensive use of international and comparative materials, particularly the International Covenant on Civil and Political Rights (ICCPR). However, it avoids issuing judgments that would clash with Beijing’s core interests and accepts its broad definition of “national security”. This arguably facilitates authoritarian interpretations of the ICCPR and undermines the authority of the Human Rights Committee. Yet, in March of 2025, the CFA granted an appeal and upheld the right to fair trial, emphasizing that the ICCPR continues to enjoy constitutional status in Hong Kong. Moreover, the CFA continues to advance the rights of vulnerable groups, including the LGBT community. The CFA’s contributions to comparative jurisprudence on international human rights law are decidedly mixed. But this is arguably inevitable, given its unusual status as an “apex court” operating in the shadow of Beijing.