By the secretary of state for foreign and

by the Secretary of State for Foreign and Commonwealth Affairs,
annual reports to United States-Hong Kong Policy Act , annual
reports of EU Commission to European Parliament
Internationa
l Treaties
- Treaties: most visible source of international law, binding only on
the subjects of international law, most governs relations between
states

Will inevitably have some consequences for the legal rights and
obligations of individuals
- Have full force of law between states
- No general guidance on the status of international treaties by BL
BL 39(1)
ICCPR, IC on Economic, Social and Cultural Rights and international
labour conventions shall be implemented through the laws of
HKSAR( should be following “then-existing international law
framework” due to pervading theme of continuity in BL)
Monism
( monist
jurisdiction
)
- Most are civilian law jurisdictions
- Accepts rules of international law as intrinsic to
domestic law
- No domestic legislation for implementation
- The treaty alone has the force of law
- Macau: monist supremacy of international treaties over
legislation
- PRC: differences between treaty and civil laws>
international law supremacy( art 142 of the General
Code of Civil Law)

In practice, only five precedence to those dealing with
commercial and trade matters but never human rights
Dualism
( Dualist
jurisdiction
)
- Most are common law jurisdictions
Attorney-General for Canada v Attorney-General for
Ontario 1937 :
- The making of an treaty is an executive act
- The performance of its obligations, if they require
alteration of the existing domestic law, requires
legislative action
Exception:
Convention on the Law of Sea
1982
- Permits self-governing
associated states and
internally self-governing
dependent territories to be
parties
Examples of domestication of
treaties:
HK Bills of Right
Ordinance( Cap.383)
- Incorporates all the
provisions of
ICCPR( direct copy)
Yin Xiang Jiang v Director of
Immigration 1994 CA
- Not to be assumed that
HK has no respect for its
treaty obligations esp
those pertaining to
fundamental human rights
- Even though that
obligation has not been
incorporated into domestic
law> still a factor that will
be considered in the
exercise of a discretion
Mok Chi Hung v Director of
Immigration 2001

- Assent of Parliament is necessary
Separation of powers:
- Executive: conduct of external relations is a prerogative
exclusively to the Crown
- Legislative: consent of Parliament is required to
necessary statutes to make law
- Treaties cannot themselves become sources of law
domestically as they spring from executive not
legislative action
- Treaty provisions must be incorporated in a statute of the
legislature to take effect domestically
-
Incorporating legislation is not always needed for
treaties concerning matters of principle or already
addressed by existing legislation or having no domestic
relevance
- Permitting treaties to alter domestic rights and obligations =
conferring a general law-making power on the executive> upset
constitutional checks and balances
