Using International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation

Abstract

Hong Kong provides an interesting case study on the increasingly dynamic interaction between international law and domestic public law regimes. In a trilogy of cases, the Hong Kong courts have examined the domestic application of the international law of non-refoulement. These decisions addressed the potential influence of international law on constitutional rights, statutory interpretation, principles of judicial review, as well as the scope of the common law doctrine of incorporation. Having regard to common law dualist principles and Hong Kong constitutional law, this paper critically assesses the judicial use of international law in fashioning a domestic law duty of non-refoulement.