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
The judgment of Hartmann J of the Hong Kong Court of First Instance in C v Director of Immigration  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
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