Unincorporated treaty in a dualist system can take

Unincorporated treaty in a dualist system can take effect as( common
law doctrines):
- A relevant consideration in government decision making.
- A legitimate expectation that the government will act in conformity
with the treaty.
Treaties applicable in HK in two categories:
1) Entered into by Sovereign( UK/PRC)
2) Entered into by HK itself
- to which China is a party> treaties entered into by HK on its own
- to which China is not a party> entered into by HK upon
authorization
- The conclusion of an
international covenant
give rise to a legitimate
expectation that
administrative decision-
makers will act in
conformity
( reasonable person will expect
the government will act in
accordance with the treaties
unless the statute or
government act indicates
clearly to the contrary)
ICESCR
- not incorporated into HK
law, but still be used as a
framework in which
government’s decisions or
discretions are to be
considered
Treaties entered into by sovereign
1) treaties pertaining to foreign affairs and defence
- prerogative of conducting foreign affairs and defence is vested
exclusively in the sovereign before and after the Handover
- all multilateral and bilateral treaties on high international policy to
which China is a party> apply to HKSAR( reservation by China to
certain provisions in such treaties as well, e.g. its non-acceptance to
the compulsory jurisdiction of the international Court of Justice)
BL 153(1)
Geneva Conventions
1949( provides some rules for
international armed conflict)

The application to the Hong Kong Special Administrative Region of
international agreements to which the People's Republic of China is or
becomes a party shall be decided by the Central People's Government,
in accordance with the circumstances and needs of the Region, and
after seeking the views of the government of the Region.

enjoins China to act cautiously when extending to HK treaties
made by China
- several national laws of PRC in Annex III are domestications of
international treaties by NPCSC> CE incorporated them into laws
of HK by virtue of the Promulgation of National Laws 1997( a
prerogative order)
- under regulation, agreement between PRC and international
organizations to establish offices in HK, after consultation with
HKSAR government> have force of law

china’s monism and HK’s dualism are incompatible
- International Organization( Privileges and Immunities)
Ordinance(Cap.558): empower CE to make subsidiary legislation
domesticating agreements applicable to HK( to avoid constitutional
difficulties)

Most of China’s bilateral treaties do not apply to HK outside the
realm of high international policy
2) Treaties to which PRC is not a party
BL 153(2)
- Treaties where PRC is not a party but implemented in HK may
continue to be implemented in HKSAR
- State Council should “as necessary, authorize or assist the HKSAR
government to make appropriate arrangements for application of
other relevant international agreements”
Special arrangements were made for the continued application of
treaties:
-