Unincorporated treaty in a dualist system can take effect as common law

Unincorporated treaty in a dualist system can take

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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)
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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: -
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