The Legal Status of Unincorporated Treaties in Hong Kong – Constitutionally Unique?

Abstract

This article questions the received orthodoxy from England and Wales that unincorporated treaties are ineffective (or not self-executing) on the domestic plane, and that municipal courts are incompetent to adjudicate the rights and liabilities arising from them. Anomalous gaps in protection have arisen from the application of this orthodoxy in the human rights context in Hong Kong. A close analysis, however, shows the orthodox positions in both Hong Kong and England and Wales to have been overstated, and there is room and good constitutional reason for an estoppel to be imposed against the executive in human rights cases, resulting, effectively, in the direct application of unincorporated human rights norms.