Customary Non-Refoulement of Refugees and Automatic Incorporation into the Common Law: A Hong Kong Perspective

International and Comparative Law Quarterly, Vol. 58, pp. 443-468, 2009

26 Pages Posted: 6 Oct 2010

Date Written: April 1, 2009

Abstract

The judgment of Hartmann J of the Hong Kong Court of First Instance in C v Director of Immigration [2008] 2 HKC 165 (“C”) was ground-breaking. For the first time, a common law court unequivocally recognized a customary norm of non-refoulement of refugees. However, Hartmann J denied that the norm had attained the status of jus cogens and found Hong Kong, always guarded about asylum seekers, to be a persistent objector. His Lordship proceeded to deny the applicants any relief. They had invoked the norm to overcome the Hong Kong government’s practice of leaving the assessment of refugee status to the UNHCR. Hartmann J refused to give the norm any such procedural reach. His Lordship also refused to apply the doctrine of automatic incorporation. Through the prism of C, this article seeks to clarify the application of that doctrine, in the context of persistent objection, a constitutionally prescribed separation of powers, inconsistency between custom and statute, as well as administrative law and tortious liability. The author concludes that C should be reversed on appeal.

Keywords: International law, customary international law, refugees, Hong Kong law, automatic incorporation doctrine, administrative law context

Suggested Citation

Jones, Oliver, Customary Non-Refoulement of Refugees and Automatic Incorporation into the Common Law: A Hong Kong Perspective (April 1, 2009). International and Comparative Law Quarterly, Vol. 58, pp. 443-468, 2009. Available at SSRN: https://ssrn.com/abstract=1688157

Oliver Jones (Contact Author)

Seven Wentworth Chambers ( email )

7th Floor, 180 Phillip Street
Sydney, 2000
United States

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