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

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Pepperdine Law Review, Vol: 27, Issue: 1, Page: 53-106

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Yu, Peter K.
International Law; Law
article description
This Article argues that Hong Kong succeeded 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. 6 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."