by the Secretary of State for Foreign and Commonwealth Affairs annual reports

By the secretary of state for foreign and

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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
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- 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
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