Why are Hong Kong judges keeping a distance from international law, and with what consequences? Reflections on the CFA decision in DRC v FG Hemisphere

Abstract

In DRC v FG Hemisphere both the majority and minority opinions in the Court of Final Appeal treated international law as irrelevant for the decision which was supposed to be taken on the basis of constitutional principle alone. This was a mistaken course with potentially very negative consequences for the rule of law in Hong Kong. The minority treated decisions taken on sovereign immunity by HK courts in the past as frozen into precedents in common law and therefore deriving their strength only from the common law of Hong Kong. On the other hand the majority effectively decided that any issue coming before it which involves international law is automatically a matter of foreign affairs and that it is up to the PRC to tell the HK courts what is the interpretation of international law. The article argues that in future HK courts should treat the law of sovereign immunity as sui generis having no implications for their approach to other international law questions.