Shelter from the Storm? The International Legality of Granting Migratory Rights to Hong Kongers

Introduction

This post analyses the international legality of States granting migratory rights to Hong Kongers.  The post mainly focuses on the United Kingdom’s proposal to grant persons with British National (Overseas) (BN(O)) status the right to live and work in the UK for up to five years, but also considers the legality of similar proposals from other States.

Background

The situation in Hong Kong is tense.  The Chinese government’s decision to impose a new national security law on Hong Kong has been controversial.  Critics say the legislation jeopardises – or destroys – the One country, two systems policy set out under the 1984 Joint Declaration on the Question of Hong Kong between the UK and China. 

The Joint Declaration stipulated that Hong Kong would continue to enjoy most of the rights and freedoms it enjoyed under British administration (Art. 3(5) and Article XIII of Annex I), including the rights of freedom of expression and association.  Some commentators consider there are strong grounds to argue that the national security law violates those rights – and the rule of law more generally – as some national security trials may be held behind closed doors and Hong Kong’s chief executive will be able to determine which judges decide those cases.  There have already been arrests under the new law.

Several States have expressed concern.  This includes recent statements by a group of 27 States, which includes the United Kingdom, Japan, Germany, and France, as well as by the European Union.  Reactions are varied.  Some, like  the United States and Canada, are proposing trade restrictions.  Others, like the UK and Australia, are considering granting migratory rights to Hong Kongers.

The UK’s response has been critical.  About 2.5 million Hong Kongers – out of a population of 7.4 million – have BN(O) status (although only approximately 350,000 have active BN(O) passports).  BN(O) is a type of British nationality obtained by some Hong Kongers prior to the UK’s handover of the territory to China in 1997.  While BN(O)s may travel on a UK passport, they do not have right of abode in the UK.  The particularities of BN(O) nationality was the result of a political compromise between the UK and China during the handover talks.

The UK has historically refused to grant greater rights to BN(O)s.  The controversy surrounding the national security legislation has changed this.  Recently, UK Prime Minister Boris Johnson declared that the national security law:

violates Hong Kong’s high degree of autonomy and threatens the freedoms and rights protected by the joint declaration … if China continued down this path we would introduce a new route for those with [BN(O)] status to enter the UK, granting them limited leave to remain with the ability to live and work in the UK and thereafter to apply for citizenship.

The UK has previously justified its reluctance to grant greater rights to BN(O)s on grounds that doing so would breach the Joint Declaration.  The UK Government frequently cites a Citizenship Review authored by Lord Goldsmith, a former Attorney General (at p. 74).   Recently, however, Lord Goldsmith has rejected that interpretation of the Review, clarifying that “the UK government can extend full right of abode to BN(O) passport holders without breaching its side of the Sino-British Joint Declaration.”  

The Chinese government has denounced proposals by states to grant Hong Kongers, including BN(O)s, greater migratory rights.  Zhao Lijian, the Chinese Foreign Ministry’s spokesperson, stated that: “China strongly condemns this and reserves the right to take further measures.  The British side will bear all the consequences.”

Migratory Rights and General International Law

General international law does not seem to bar States from granting Hong Kongers further migratory rights – including the right of abode or permanent residence. 

First, as expressed by the PCIJ in Nationality Decrees Issued in Tunis and Morocco, issues of nationality are within a State’s reserved domain (p. 22).  That is, a State may domestically legislate its nationality and migration policies.  This includes the conditions under which it ascribes nationality and the migratory rights it grants foreigners.

Second, although it could be argued that both the ICJ (in Lagrand, para. 13) and the ILC (Article 4 of the Articles on Diplomatic Protection) have rejected the ‘genuine link’ requirement set out by the ICJ in Nottebohm (which considered the basis of nationality a “social fact of attachment” at p.23-24), this requirement (if applicable) should only extend to naturalisations, not to other conferrals of migratory rights (like work permits or even permanent residency).  Moreover, the UK would likely be able to satisfy that requirement.  BN(O)s are already British citizens.  They were born at a time when Hong Kong was under UK administration.  And, more importantly, they voluntarily opted into BN(O) status, so there is likely a genuine link between the UK and BN(O)s.

Third, granting Hong Kongers further migratory rights may not constitute an abuse of rights (prohibited, for instance, under Article 17 of the European Convention on Human Rights; also discussed in the context of nationality in this earlier post by Anne Peters).  This restriction was developed to avoid massive, unilateral conferrals of nationality, often without the consent of those being naturalised.  Determining whether the conferral of migratory rights is abusive depends on the specifics of how those rights are conferred.  Nevertheless, if those rights are only conferred to Hong Kongers who voluntarily apply for them, it is likely that it will not be abusive.

Thus, general international law does not restrict the possibilities of States granting further migratory rights to Hong Kongers.  Absent specific treaty obligations or other commitments, and provided they comply with the requirements mentioned above, States should be free to grant Hong Kongers (or any other group) the migratory rights they deem fit.  The UK’s position, however, is more complex.       

Migratory Rights and the Joint Declaration

The Joint Declaration was the key international instrument in the UK’s handover of Hong Kong to China.  Nationality issues surrounding the handover were complex.  Approximately three million Hong Kongers were British Dependent Territories Citizens, another type of British nationality that did not provide for the right of abode in Britain.  China opposed those Hong Kongers being granted full British citizenship.  Perhaps because of those complexities, the Joint Declaration does not contain any provision regarding nationality.  Thus, any changes that the UK makes to the rights of BN(O)s cannot breach the Joint Declaration itself.

The Joint Declaration’s Accompanying Memoranda     

The Joint Declaration was accompanied by a series of annexes, and by two short Memoranda.  Unlike the Joint Declaration, the UK’s and China’s Memoranda were unilateral.  They were not signed by both parties.  Although international law does not require registration for the validity of a treaty, the Memoranda were not registered in the UNTS, whereas the Joint Declaration and the annexes were.  The Memoranda specifically address issues of nationality.  The UK Memorandum provides that the UK “declares” that it will allow some British Dependent Territories Citizens, the status previously held by many Hong Kongers, to be “eligible to retain an appropriate status [BN(O)] … without conferring the right of abode in the United Kingdom.”

Despite their name, some memoranda  are actually treaties (Maritime Delimitation (Somalia v Kenya) at paras. 42-50), particularly when they are signed by both parties and are worded in a way that creates legal obligations.  Yet this is not the case with the Memoranda.  At most, the Memoranda may be considered instruments made “in connection with the conclusion” of the Joint Declaration “and accepted … as an instrument related to the treaty,” as defined in Article 31(2)(b) of the Vienna Convention on the Laws of Treaties.  So, while the Memoranda could assist in interpreting the Joint Declaration, they cannot be characterised as a treaty.

Yet the UK Memorandum could still bind the UK as a unilateral act.  The ILC’s Guiding Principles applicable to unilateral declarations consider that a unilateral act is binding when it is made “manifesting the will to be bound” (principle 1), taking into account the declaration’s content and its context (principle 3).  The ICJ (including recently in Obligation to Negotiate Access to the Pacific Ocean at para. 147) also held that a unilateral declaration is binding when the State making it intends to undertake a legal obligation. 

The UK Memorandum appears to meet these requirements – and may thus create legal obligations for the UK.  The memorandum’s language is not ambiguous: the UK declares that it will not provide BN(O)s “the right of abode” in the UK. 

The International Legality of Granting BN(O)s Greater Migratory Rights

In light of the UK Memorandum, would any extension of migratory rights to BN(O)s constitute an internationally wrongful act?  Three issues may be key.

The first issue is the extent of the rights granted to BN(O)s.  The UK Memorandum provides that BN(O)s will not be granted the right of abode in the UK.  It does not refer to any other types of migratory rights.  The ordinary meaning of the UK’s commitment would not restrict the UK’s right to provide BN(O)s other forms of migratory rights, including the possibility of granting Hong Kongers limited leave to remain in the UK for five years, as currently proposed.

The second issue is whether the UK could argue that granting BN(O)s further rights, even including the right of abode, is a countermeasure.  The UK may argue that the national security law breaches the Joint Declaration (particularly of Article 3(5) and Article XIII of Annex I, which set out the rights and freedoms that would be protected under Hong Kong law, including the rights of freedom of expression and association).  Additionally, the UK would have to satisfy the requirements set out in Articles 49-52 of the Articles on State Responsibility, including that the countermeasures be proportional and reversible.

The third issue is whether the UK could withdraw its unilateral declaration.  This is an uncertain area of law.  Both the ILC (in Guiding Principle 10), and the ICJ (in Nuclear Tests, para. 51) have considered that a State cannot arbitrarily revoke a unilateral declaration.  That does not mean that a State could not reasonably revoke it.  Here, the UK could argue that its declaration to refrain from granting the right of abode to BN(O)s was based on the assumption that those individuals would continue enjoying in Hong Kong the rights and freedoms they had under British administration, as provided for in the Joint Declaration.  If the UK considers that the national security law would deprive them of those rights and freedoms, it could argue that it is reasonably withdrawing its unilateral declaration regarding BN(O)s.

In sum, the issue of the UK granting further rights to BN(O)s is complex.  While the UK may have an international obligation to refrain from granting BN(O)s the right of abode in the UK, there may be circumstances in which granting additional migratory rights to BN(O)s would not appear to be internationally wrongful.