I. INTRODUCTION
The reunification of Hong Kong with the People's Republic of China (PRC) more than a decade ago has been a success. The key ingredients of the Hong Kong ‘miracle’— free enterprise, small and open government and a robust legal system— were guaranteed beyond 1997 by Hong Kong's Basic Law. That instrument has endured and the territory has generally prospered. Yet, there is another reason why Hong Kong has thrived: immigration. Both as a British colony and a Special Administrative Region (SAR) within the PRC, Hong Kong has enthusiastically received generations of entrepreneurs, professionals and manual workers from all over the world. Indeed, nearly half of Hong Kong's people were born overseas.Footnote 1
However, there is another, perhaps darker, side to immigration policy in this jurisdiction. Hong Kong is a tiny and highly developed territory of 7 million people, surrounded by billions of people, many of whom are subject to an earlier stage of development. Thus, while certain groups are welcome in Hong Kong, immigration is strictly regulated. Oppression does not, of itself, gain entry. In particular, Hong Kong is not a party to the Convention Relating to the Status of Refugees and its Protocol (‘the Convention and Protocol’).Footnote 2 In C v Director of Immigration (‘C’),Footnote 3 a group of asylum seekers challenged this policy before the Court of First Instance (CFI). However, instead of relying on the Convention and Protocol, the applicants invoked custom.
Hartmann J dismissed the applicants' claims and his Lordship's judgment is under appeal. The case is of international interest. It is the first comprehensive recognition, at least by a common law court, of customary non-refoulement of refugees. Further, C involves extensive consideration of the doctrine of automatic incorporation, as articulated in Trendtex Trading Corp v Central Bank of Nigeria (‘Trendtex’).Footnote 4 Through the prism of the judgment, 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. It also argues that the applicants in C have significant scope to succeed on appeal. A study of the judgment points to how Trendtex applies in relation to persistent objection, constitutional law, statutory interpretation and administrative action. It also reveals that the applicants should succeed on appeal.
II. BACKGROUND TO C
A. Hong Kong's Status Under the Convention and Protocol
Hong Kong has long had an ambivalent relationship with international refugee law. The United Kingdom (UK) exercised its entitlement under colonial clauses in the Convention and Protocol to refrain from applying those instruments to Hong Kong.Footnote 5 It cited the colony's ‘small size and geographical vulnerability to mass illegal immigrants’.Footnote 6 Under a detailed arrangement with the UK for the transition of treaty obligations relating to Hong Kong,Footnote 7 the PRC also party to the Convention and Protocol, adopted the same stance.Footnote 8
Yet, in doing so, the PRC did not, and probably could not, invoke colonial clauses. Her exclusion of Hong Kong has a different potential basis in the Convention and Protocol: federal clauses.Footnote 9 Those clauses limit the obligations of a ‘Federal or non-unitary State’, by restricting a central government to implementation within its constitutional competence. Beyond this, the central government is only obliged to commend the Convention and Protocol to relevant sub-national authorities. Those authorities are not themselves placed under any obligations. Accordingly, for better or worse, federal clauses essentially preclude any violation of the Convention and Protocol at the sub-national level.Footnote 10
The PRC, having created Hong Kong as an autonomous region with control over its own immigration policy, to the exclusion of national law, can enjoy the protection of such federal clauses.Footnote 11 Its indication that the Convention and Protocol would not extend to Hong Kong may fall short of the requirement to commend those instruments. However, any consequent non-observance in Hong Kong is permissible. In any event, Hong Kong municipal law has long been separated from treaties, subject to implementing legislation, so as to prevent executive law-making. Even if the author were wrong on federal clauses, any contravention of the Convention and Protocol would not, within Hong Kong, have direct legal significance.Footnote 12
B. Other Hong Kong Connections with International Refugee Law
Despite its isolation from the Convention and Protocol, Hong Kong has substantially engaged with international refugee law. Sections 11 and 13 of the Immigration Ordinance (Cap 115) conferred on the Director or immigration official general discretions to grant or refuse permission to land or remain in Hong Kong (‘the general discretions’). Since the 1950s, immigration officials have granted such permission where repatriation would result in, broadly speaking, ‘political persecution’.Footnote 13 While rudimentary, this represented the first step in Hong Kong's adherence to the cornerstone of international refugee law: non-refoulement.
Hong Kong presently solidified its relationship with non-refoulement. From the 1970s to the 1990s, vast numbers of Vietnamese asylum seekers arrived in Hong Kong. The colony, together with other Asian jurisdictions, was party to international arrangements by which it became a port of first asylum, ensuring that the Vietnamese were not repatriated, so as to facilitate their resettlement elsewhere.Footnote 14 Initially, this did not require Hong Kong to inquire into international refugee law. Countries such as the United States were accepting Vietnamese unconditionally.Footnote 15 Thus, Hong Kong merely exercised the general discretions in favour of Vietnamese until their departure.
As numbers of Vietnamese asylum seekers increased, the colony inserted a specific provision into Cap 115, s 13A. It gave immigration officials a discretion to enable a Vietnamese ‘to remain in Hong Kong as a refugee pending … resettlement elsewhere’.Footnote 16 However, the term ‘refugee’ did not incorporate the Convention and Protocol. It was simply a statutory description of those Vietnamese provisionally allowed to remain in Hong Kong.Footnote 17 This state of affairs did not last. Over time, Western nations began to lose enthusiasm for receiving Vietnamese asylum seekers.Footnote 18 The numbers of those remaining in Hong Kong, by then in mandatory detention,Footnote 19 began to spiral. A handful was allowed to settle in the colony.Footnote 20 However, this program would never be substantial.Footnote 21 Something more was required.
The solution was agreed to in 1989 by a large number of jurisdictions, including the UK on behalf of Hong Kong.Footnote 22 It was called the Comprehensive Plan of Action (CPA') and provided for ports of first asylum to screen Vietnamese to identify those who were refugees according to the Convention and Protocol. They would be resettled in the West. The remainder would be repatriated to Vietnam.Footnote 23 Repatriation was initially voluntary but Hong Kong would later procure an international consensus permitting forcible return.Footnote 24 The CPA had distinguished critics.Footnote 25 However, it was exactly what Hong Kong desired. Indeed, it had pre-empted the CPA by concluding an agreement with the United Nations High Commissioner for Refugees (UNHCR). Under that agreement, Hong Kong officials would screen Vietnamese in accordance with the Convention and Protocol, while the UNHCR would facilitate resettlement or repatriation.Footnote 26
Despite this executive use of international refugee law, Hong Kong's legislative outlook remained cautious. Section 13A of Cap 115 stood unchanged. Officials simply chose to exercise their discretion in light of the Convention and Protocol. Decisions under s 13A became subject to merits review by the Refugee Status Review Board under a new provision, s 13F. The Board would revisit an official's conclusions under the Convention and Protocol.Footnote 27 Equally, though, s 13F made no express reference to those instruments. Perhaps the intention was that the Hong Kong government would retain the flexibility to avoid regard to international law.Footnote 28
Many Vietnamese asylum seekers were screened in this way and most were repatriated, voluntarily or otherwise. In 1998, the relevant provisions of Cap 115 were effectively repealed by a stipulation that they would not apply to arrivals after a certain date.Footnote 29 Around this time, Hong Kong controversially suggested that forcible repatriation would be extended to those who had been granted refugee status but had not been resettled in the West. It argued doing so was, in the particular circumstances, consistent with international law.Footnote 30 It is unclear whether this proposal was ever implemented.Footnote 31 Indeed, as the numbers of Vietnamese asylum seekers in Hong Kong dwindled, many were allowed to reside there permanently.Footnote 32
This end to the saga of Vietnamese asylum seekers did not conclude Hong Kong's association with international refugee law. Rather, the territory cemented its use of that law by extending screening to all asylum seekers arriving in Hong Kong. The caution evident in relation to the Vietnamese remained, with officials merely choosing to exercise the general discretions in light of the Convention and Protocol. Indeed, Hong Kong was even more tentative in relation to the general pool of asylum seekers, as it concluded an agreement with the UNHCR under which the latter performed the relevant screening.
The process was as follows. After receiving evidence and submissions, an examiner from the UNHCR would determine whether an asylum seeker was a refugee according to the Convention and Protocol. There was then scope, almost always pursued, for an appeal, also decided by the UNHCR. Once the UNHCR had reached a final view, it would forward its conclusion, essentially without reasons or supporting documentation, to the Department of Immigration.Footnote 33 The Department, in light of the UNHCR's conclusion, would then decide whether to grant permission to remain pending resettlement in a location arranged by the UNHCR or refuse permission and work towards repatriation.Footnote 34 There was essentially a no merits review.Footnote 35
C. Events Leading to C
The above procedures would be challenged in C. However, C had a prequel: Secretary for Security v Prabakar (‘Prabakar’).Footnote 36 At first blush, this case had a different focus. It did not concern the grant or refusal of permission to remain, rather, it dealt with the power of the Secretary for Security (‘the Secretary’) to deport immigrants convicted of certain criminal offences under s 20(1) of the Immigration Ordinance. In addition, Prabakar was concerned with a separate obligation of non-refoulement in cases of torture, imposed by Art 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Torture Convention’).
However, an attempt by the Secretary to reconcile the power to deport criminals with Art 3(1) of the Torture Convention gave Prabakar great relevance to international refugee law in Hong Kong. The Torture Convention had essentially bound Hong Kong since colonial times and continued to do so after reunification.Footnote 37 It had been partially incorporated into municipal law by legislation, as it was a crime to engage in tortureFootnote 38 and, it appears, no person could be extradited to an apparent fate of torture in a requesting state also party to the Torture Convention.Footnote 39 However, there was no wider incorporation of non-refoulement under Art 3(1). In particular, it did not expressly restrict the Secretary's power to deport criminals or the general discretions. Rather, the Hong Kong government had merely stated that, in exercising such powers, it chose to adhere to Art 3(1).Footnote 40
How, then, did this relate to international refugee law? There were significant differences between the torture that triggered non-refoulement under Art 3(1) and the persecution that triggered the same obligation under the Convention and Protocol. However, there could be an overlap. Accordingly, in practice, a ‘great many’Footnote 41 asylum seekers sought permission to remain (or resisted deportation) by reference to both.
This situation led the Hong Kong government to make a critical error. As indicated, it would receive a bare conclusion as to refugee status from the UNHCR. If the UNHCR had upheld an asylum seeker's claims, immigration officials would grant permission to remain or, no doubt, decide against deportation. However, if the UNHCR had rejected those claims, the policy of adherence to Art 3(1) of the Torture Convention required consideration of whether permission to remain should be granted or deportation barred due to torture. Given the overlap described, immigration officials began to treat a conclusion by the UNHCR adverse to refugee status as if it also negatived a claim under the Torture Convention.
The vulnerability of this approach is obvious. In the absence of any reasons for, or documentation relevant to, the UNHCR's conclusion, immigration officials could not know whether the applicant had been refused refugee status for reasons that also precluded Art 3(1) of Torture Convention. Predictably, then, the process was challenged in Prabakar. Mr Prabakar, often entering Hong Kong on a forged passport, was convicted of an offence. The crime was such that the Secretary of Security had to decide whether to order deportation. In the meantime, Mr Prabakar had claimed refugee status and his claim was rejected by the UNHCR. Under the usual practice, its bare conclusion had been forwarded to the Secretary, the Secretary had simply applied that conclusion to reject all relevant claims and ordered deportation.
Challenging the Secretary's error was not straightforward. As indicated, the Torture Convention was only partly incorporated. The Secretary, at her discretion, was merely choosing to consider non-refoulement under Art 3(1). This was consistent with the history of flexibility regarding international law under the Immigration Ordinance. Even so, Mr Prabakar sought judicial review on the grounds that the Secretary was under a duty to observe Art 3(1) and that duty had not been properly discharged by mere reliance on the UNHCR's conclusion under the Convention and Protocol, without further consideration of the Torture Convention.Footnote 42
Among the lower courts, the duty was favoured by the Court of Appeal.Footnote 43 However, the Secretary appealed to Hong Kong's successor to the Privy Council, the Court of Final Appeal (‘CFA’). The CFA refused to rule upon the existence of the duty. It simply assumed, without deciding, that the duty was present. Li CJ, speaking for the CFA, warned ominously that it ‘must not be taken to be agreeing … that [the] duty exists’.Footnote 44 The Chief Justice went on to invalidate the Secretary's deference to the UNHCR on the ground of procedural fairness. The Secretary had been obliged to give Mr Prabakar ‘every reasonable opportunity to establish his [torture] claim’.Footnote 45 Further, by assessing that claim ‘without undertaking any independent assessment’, the Secretary fell ‘well below the high standards of fairness required’.Footnote 46
This raised the issue of whether the Secretary had been entitled to consider the UNHCR's conclusion to any degree. The Chief Justice indicated that a claim such as Mr Prabakar's must be ‘properly assessed’Footnote 47 by the Secretary. However, in doing so, she could give weight to the views of the UNHCR. Great weight was proper where the UNHCR had upheld refugee status. A torture claim could almost inevitably be allowed on the basis of the UNHCR's conclusion.Footnote 48 Much less weight was permissible where the UNHCR had rejected refugee status. The Secretary had to ‘come to an independent judgment, giving such weight to [the rejection] as may be appropriate in the circumstances’,Footnote 49 obtaining from the UNHCR ‘some indication … as to whether the reason for the rejection is relevant to the torture claim’.Footnote 50
Prabakar spawned a substantial revision of the Hong Kong government's approach to torture claims by asylum seekers. It appears the judgment could have been satisfied by the UNHCR providing reasons and supporting documentation for its conclusions. An assessment of the torture claim by reference to such material, combined with an opportunity for further comment by the claimant, would surely fulfil the requirement laid down by the court in Prabakar. However, the Hong Kong government was more cautious. It would now assess torture claims independently, without regard to the UNHCR.Footnote 51 On the other hand, it still left the task of determining refugee status to that organization. This was unsatisfactory. Having ‘two essentially independent investigations’ produced delayFootnote 52 and it left uncertain the work of the UNHCR. Was continuing reliance thereon as vulnerable to challenge in refugee cases?
III. HARTMANN J'S DECISION
The applicants in C certainly hoped so. There were six, from Africa and south Asia. Each sought permission to remain in Hong Kong, claiming they attracted the protection of the Convention and Protocol. The UNHCR rejected those claims. Accordingly, the Director refused the applicants permission to remain. They sought judicial review in the CFI. The essence of their case was that the requirements recognized in Prabakar prevented the Director from simply relying upon the UNHCR. However, in one respect, the applicants departed from Prabakar. Perhaps swayed by the ominous warning of Li CJ, they did not invoke conventional obligations; rather their focus was customary non-refoulement of refugees. They argued not only that such an obligation had emerged of customary international law but that it was jus cogens. Further, under authorities such as Trendtex, it was part of municipal law. As a result, it obliged the Director to assess refugee status independently.Footnote 53
In delivering judgment, Hartmann J noted that, due to immunities, there could be no judicial review of the UNHCR itself.Footnote 54 His Lordship then described the requirements for custom, including state practice and opinio juris.Footnote 55 It was open to individual states to ‘contract out’Footnote 56 of custom through ‘repudiat[ion]’,Footnote 57 ie persistent objection. In this respect, it would be relevant, but not decisive, to point to non-participation in treaties relevant to the custom. However, custom might evolve into jus cogens, upon which repudiation would become impossible.Footnote 58 Applying these requirements, Hartmann J became the first judge, at least at common law, to recognise customary non-refoulement of refugees. His Lordship nonetheless denied that it was jus cogens.Footnote 59
Hartmann J then addressed the content of the norm. Having emerged from the Convention and Protocol, it defined refugee status in the same way as those instruments.Footnote 60 Further, the norm was limited. While it barred non-refoulement, it did not stipulate how to assess refugee status.Footnote 61 At this point, Hartmann J apparently considered whether Hong Kong had persistently objected to non-refoulement of refugees. His Lordship asked whether Hong Kong had ‘repudiated’Footnote 62 the rule and, in summarizing the judgment, stated that ‘by consistent and long-standing objection, Hong Kong has refused to accede to the rule’.Footnote 63 This recalls his Lordship's discussion of the scope for states to ‘contract out’ of, or ‘repudiat[e]’, custom. It followed that customary non-refoulement of refugees did not apply to Hong Kong under public international law.
As evidence of persistent objection, Hartmann J relied on the judgment of the Hong Kong Court of Appeal in Lee Bun v Director of Immigration Footnote 64 (‘Lee’), decided before reunification 1997. In Lee, the judges had detailed the non-extension of the Convention and Protocol to Hong Kong by the UK, the absence of relevant provisions in the Immigration Ordinance, with the exception of Vietnamese asylum seekers; and a reservation by the UK to the International Covenant on Civil and Political Rights (‘ICCPR’), refusing to apply to Hong Kong aspects of Art 13 concerning immigrants facing expulsion.Footnote 65 Hartmann J clearly felt that these factors remained applicable after 1997.Footnote 66
Beyond Lee, Hartmann J noted a reservation by the PRC to the Convention on the Rights of the Child (‘CROC’), which essentially left Hong Kong scope to derogate from Art 22(1) on the rights of asylum seeker or refugee minors. His Lordship also noted that CROC remained apart from Hong Kong municipal law.Footnote 67 Lastly, his Lordship invoked statements by the Hong Kong government, including in the Legislative Council, that apparently distanced the territory from international refugee law.Footnote 68
The obvious difficulty with Hartmann J's finding was the evidence that Hong Kong had consistently refrained from repatriating people to face persecution, including within the meaning of the Convention and Protocol. Yet, his Lordship was unmoved. The Director had not ‘employ[ed] his relevant statutory powers in a manner that amount[ed] to acceptance of’ custom.Footnote 69 Rather, there was a subtly, but significantly, different state of affairs. The Director had traditionally refrained from repatriation according to ‘basic humanitarian values’,Footnote 70 merely leading to results consistent with custom.Footnote 71
Though strictly unnecessary, Hartmann J went on to consider the reception of customary non-refoulement of refugees into municipal law. His Lordship recounted automatic incorporation, quoting Blackstone's dictum that ‘customary international law is part of the common law’ and referring to Trendtex.Footnote 72 However, Hartmann J also extracted the Privy Council's ruling in Chung Chi Cheung v R Footnote 73 (‘Chung’) that incorporation only occurred ‘so far as [the custom] is not inconsistent with rules enacted by statutes or finally declared … by tribunals’Footnote 74 (‘Chung inconsistency’).
Hartmann J then referred to a statement by Scarman LJ in R v Secretary of State for Home Department; Ex parte Phansopkar Footnote 75(‘Phansopkar’), to the effect that statutes should be construed to uphold fundamental rights, so long as this does not contradict unambiguous provisions.Footnote 76 His Lordship felt that this modified Chung inconsistency.Footnote 77 Where customs protecting fundamental rights were concerned, such inconsistency would only flow from statutory provisions that were abundantly clear. Even so, Hartmann J found such inconsistency in the law of Hong Kong with respect to non-refoulement of refugees. Given the matters by which his Lordship had grounded persistent objection, and following a like conclusion in Lee, the relevant powers in the Immigration Ordinance unambiguously enabled derogation from the relevant custom.Footnote 78
For these reasons, the application was dismissed. In short, while customary international law stipulated non-refoulement of refugees, that law did not bind Hong Kong, by virtue of its persistent objection. In any event, while custom was ordinarily part of Hong Kong municipal law, it was not so here, due to Chung inconsistency flowing from the Immigration Ordinance. Even if this were wrong, the relevant custom was simply silent on the applicants' central complaint, namely the manner in which Hong Kong should assess refugee status. The author understands that an appeal against the judgment of Hartmann J will be heard in October 2009.
IV. SOME CRITICAL OBSERVATIONS
A. A Conventional Solution?
The applicants made a strategic blunder in bypassing the Convention and Protocol in favour of customary international law. There are many ways in which unincorporated conventions resonate in administrative law. For example, the House of Lords in R v Secretary of State for the Home Department; Ex parte Brind (‘Brind’)Footnote 79 held that Wednesbury unreasonableness might be generated by an executive contravention of an unincorporated, but internationally binding, treaty, at least where the latter concerns human rights.Footnote 80
Such unreasonableness was immaterial in C. It had been denied application to Hong Kong immigration cases.Footnote 81 In any event, the Convention and Protocol were not strictly binding on Hong Kong. Further, there is no indication the applicants could establish a contravention of Convention and Protocol on the ground that, in truth, they deserved refugee status. Nor could they do the same by reference to the Secretary's reliance on the UNHCR. For Hartmann J found that neither the Convention and Protocol nor custom stipulated any manner of assessing refugee claims.Footnote 82 That is also the view of the English Court of Appeal.Footnote 83 Lastly, it is plausible that the holding in Brind could be displaced by a statutory provision permitting derogation from an unincorporated treaty,Footnote 84 which represents Hartmann J's understanding of the Immigration Ordinance.Footnote 85
Yet, the holding in Brind is not the last word on unincorporated treaties in administrative law. Brind itself concluded that, Wednesbury unreasonableness aside, a statutory discretion cast in general terms was not limited by an unincorporated treaty.Footnote 86 Earlier English authorities,Footnote 87 accepted by the Hong Kong Court of Appeal,Footnote 88 went even further. The provisions of an unincorporated treaty were not even a relevant consideration in the exercise of such a discretion. This is because conferring this status would offend the general separation of treaties from municipal law.Footnote 89
However, an exception to the foregoing was recognized by the House in R v Secretary of State for Home Department; Ex parte Launder Footnote 90 (Launder). Their Lordships held that, while an administrative decision-maker is not obliged to consider an unincorporated treaty, such as the European Convention on Human Rights (‘European Convention’), if he or she elects to do so, and misdirects himself or herself as to the content of the treaty, that misdirection may be judicially reviewable. In other words, if the decision-maker chooses to take the treaty into account, he or she should not do so incorrectly.Footnote 91 This could spawn an anterior rule to the effect that, in the event of such a choice, the decision-maker should consider the treaty with the thoroughness that, since Prabakar, procedural fairness requires.
This could have met the applicants' needs in C. The Director undoubtedly chose to have regard to whether or not the applicants were refugees under the Convention and Protocol. Of course, unlike the European Convention in Launder, those instruments are not strictly binding on Hong Kong. However, the apparently critical factor in Launder, voluntary consideration, was present. It is also arguable that reliance on a bare conclusion by the UNHCR, without reasons or supporting documentation, does not involve proper elective attention to the Convention and Protocol. While the Director's approach is not as obviously wrong as the use of the UNHCR's conclusions for torture claims in Prabakar, it would appear to be sufficiently defective.
Indeed, if Launder and Prabakar had been so combined in C, it would have been a blessing in disguise for the Hong Kong government. As indicated, Prabakar does not require a wholly independent assessment of torture or, it must follow, refugee claims. Mere independent consideration of UNHCR determinations that have been properly explained and accompanied by relevant documentation would be enough. If the Hong Kong government procured determinations of this standard from the UNHCR, and gave applicants a reasonable opportunity to provide additional information, it could then resolve torture and refugee claims simultaneously. The current delays would disappear.
B. Significance of Persistent Objection
While potentially redundant under Launder and Prabakar, it is worth examining Hartmann J's conclusions on custom. It is first necessary to consider persistent objection to non-refoulement of refugees. A significant proportion of his Lordship's evidence of such objection originated from Hong Kong, rather than the UK or the PRC. This raises the issue, which his Lordship did not expressly consider, of whether the territory is competent to engage in such objection.
Starting with municipal law, Art 151 of the Basic Law provides that the territory ‘may on its own … maintain and develop relations and conclude and implement agreements with foreign states and relevant international organizations’.Footnote 92 This is clearly not confined to treaty-making. It could enable engagement with customary international law, through state practice and opinio juris or persistent objection. Yet Art 151 may only be exercised ‘in the appropriate fields’. It provides examples of those fields. However, they do not include immigration or refugees. Still, given the territory's powers of immigration control under Art 154 of the Basic Law, refugees would be an ‘appropriate field’. Thus, Hong Kong has the municipal capacity for persistent objection.
The position under public international law is more complicated. It appears to recognise conferrals of diplomatic capacity on regional governments by domestic constitutional law. This has traditionally taken the form of competence to conclude treaties.Footnote 93 However, there is no reason in principle why it could not also cover a broader conferral of broader scope like Art 151. In any event, some believe Hong Kong has international legal personality.Footnote 94 This would mean that Art 151 merely recognizes an overarching capacity of public international law. Again, there are no grounds for doubting this capacity would authorize persistent objection to non-refoulement of refugees.
The next issue is the form and content of persistent objection. Hartmann J quoted statements by Prof Ian Brownlie that it must be ‘clear’ and ‘there is probably a presumption of acceptance … to be rebutted’.Footnote 95 As indicated, for these purposes, Hartmann J was not overly reliant on treaty arrangements, citing the Asylum Case Footnote 96 and Military and Paramilitary Activities in Nicaragua Footnote 97 (‘Nicaragua’). Rather, his Lordship was flexible about the statements or conduct that may generate persistent objection. This is forgivable, particularly for Hong Kong, with its limited place on the world stage. At least some of the statements or conduct should be made to an international audience. However, it is submitted that domestic political or legal pronouncements that have been published or broadcast in some way, including electronically, are also relevant.
The critical question, then, is whether the evidence of persistent objection was appropriately clear. Beginning with international arrangements, his Lordship indicated that the Convention and Protocol had never been extended to Hong Kong. However, by discussing Lee, his Lordship merely detailed non-extension by the UK. There was no explanation of whether this was altered by reunification. As explained, it involves a shift from colonial to federal clauses in the relevant instruments. However, in the present context, the two may be equated. The intention to insulate Hong Kong from the Convention and Protocol, essentially in line with the respective clauses, was clear.
Other international arrangements identified by Hartmann J were less supportive. In considering the reservation by the UK to Art 13 of the ICCPR, his Lordship again did not address the significance of reunification. At that time, the PRC stood apart from the ICCPR. However, under treaty arrangements with the UK, the ICCPR ‘as applied to Hong Kong, shall remain in force’.Footnote 98 Whatever the precise status of this under public international law,Footnote 99 the term ‘as applied to Hong Kong’ must be understood to preserve the reservation regarding Art 13.Footnote 100 The PRC has since signed the ICCPR and is preparing for ratification.Footnote 101 Presumably, at this time, it will repeat the reservation in favour of Hong Kong.
Still, the reservation could not be a source of persistent objection to non-refoulement of refugees. Art 13 stated that an immigrant could only be expelled ‘in pursuance of a decision reached in accordance with law’. It also generally stipulated a hearing, as well as a right to review, exercisable with representation. In essence, Art 13 requires a legal framework for immigrants generally, together with procedural and appellate entitlements. As the Human Rights Committee has indicated, Art 13 is silent on the ‘substantive grounds for expulsion’,Footnote 102 even if they entail repatriation of a refugee. Thus, the UK's decision, by reservation, to disapply aspects of the provision to Hong Kong and its effect beyond reunification is simply beside the point.Footnote 103
Much the same may be said of Art 22(1) of CROC, from which Hong Kong has been similarly insulated by the PRC.Footnote 104 The provision reads:
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
This is complicated. The starting point is that CROC confers a series of rights on children (‘CROC rights’). Art 22(1) confirms that CROC rights extend to children who are seeking or have been granted refugee status. It requires special steps, in the context of such children enjoying CROC rights and other conventional rights. Yet, all of this is distinct from non-refoulement on the ground of refugee status. That right is not a CROC right. Nor is it one of the other conventional rights to which Art 22(1) refers. Rather, as the text makes clear, non-refoulement of refugees is part of a separate body of international or domestic law and procedures that merely triggers the additional requirements of Art 22(1).Footnote 105 Thus, on the present issue of persistent objection, its non-application to Hong Kong can only be neutral.
There are other international arrangements that, unlike the ICCPR and CROC, are directly relevant. They were not considered by Hartmann J, but undermine the finding of persistent objection. First, there are arrangements regarding Vietnamese asylum seekers, such as the CPA, and the related agreement between Hong Kong and the UNHCR. Their essence was non-refoulement of refugees.Footnote 106 The foregoing cannot simply be discounted as exceptional, as all international conduct must be relevant to persistent objection. Second, there are the subsequent arrangements with the UNHCR concerning non-Vietnamese, which lay at the heart of C. They involve Hong Kong's consent to the application of the Convention and Protocol by the UNHCR in order to avoid repatriating refugees.
In short, Hong Kong's international conduct is irrelevant or ambivalent rather than resistant toward customary non-refoulement of refugees. This leaves the municipal legislative and executive action to which Hartmann J referred. The history of the Immigration Ordinance does reveal caution and flexibility regarding international refugee law. At no point has that law been expressly incorporated. Rather, it has been selectively considered under discretionary powers. However, the picture is again contradictory. Despite the reticence of the legislation, it has consistently been applied in accordance with the Convention and Protocol and arrangements with the UNHCR.
In particular, the Immigration Ordinance appears never to have been used to perform non-refoulement of refugees. Hartmann J may be right to characterise this as a mere sense of decency not legal obligation. Such a motivation might be relevant to assessing whether Hong Kong has shown the necessary opinio juris for the existence of a relevant customary norm. However, it must matter less at the stage of persistent objection. The focus turns to what Hong Kong communicates or, in other words, the impression it gives. A consistent refusal to repatriate refugees contributes to the mixed picture flowing from Hong Kong's conduct on the international stage.
Lastly, there are the executive pronouncements. These are much less sweeping than Hartmann J suggests. One seems to comprise an affidavit filed solely for C. This is surely of little weight in its own right, instead merely supporting other pronouncements. Of those referred to by his Lordship, many seem to concern opposition to the settlement of refugees in Hong Kong, which is entirely different from their non-refoulement. The most relevant remark, made in the Legislative Council, states that ‘there is no other official policy or legislation in Hong Kong law governing the screening of refugees’.Footnote 107 This seems to refer back to, and is no more significant to persistent objection than, the reticence of the Immigration Ordinance regarding international refugee law.
The greatest opposition by the Hong Kong government to non-refoulement was not mentioned by Hartmann J. This is the threat to repatriate Vietnamese refugees, discussed above. However, the threat may not have been carried out. In any event, it has no significance for persistent objection. This is because, in accordance with further comments in Nicaragua,Footnote 108 such objection cannot flow from conduct that a state argues is consistent with international law. This was precisely what the Hong Kong government did when articulating its proposal.Footnote 109 Thus, in truth, Hong Kong cannot establish persistent objection to a customary norm of non-refoulement of refugees.
C. Constitutional Vulnerability of Trendtex
As Hartmann J had found persistent objection, it was not necessary for his Lordship to have regard to Trendtex. While the point has never been judicially considered, it must be that automatic incorporation under Trendtex only operates in relation to custom that is binding under public international law. If, through persistent objection, a jurisdiction has managed to ‘contract out’ of the norm, Trendtex must have no impact. Even so, as Hartmann J erred by finding persistent objection, Trendtex remained critical. In Hong Kong, Trendtex raises a threshold point that neither counsel nor Hartmann J considered. Did Trendtex remain part of the law of Hong Kong following reunification? The starting point is Article 8 of the Basic Law. This provision is central to the continuity upheld by the Basic Law. It relevantly states “[t]he laws previously in force in Hong Kong, that is, the common law … shall be maintained, except for any that contravene this Law …' (emphasis added). Thus, if Trendtex contravenes the Basic Law, it has not survived reunification.
The Basic Law ‘enshrines the separation of powers’.Footnote 110 The Chief Executive and other officials have classic executive functions.Footnote 111 Legislative power is vested in the Legislative Council.Footnote 112 Judicial power is vested in the courts.Footnote 113 There are a handful of exceptions. For example, the Chief Executive, like the President of the United States, must sign a bill before it becomes law. However, this is strictly regulated.Footnote 114 Equally, the Chief Executive and other officials are presumably able to make delegated legislation.Footnote 115 However, this capacity is not expressly conferred by the Basic Law and, while presumably available, would not be unlimited.Footnote 116 Lastly, the grant of judicial power probably permits the courts to exercise administrative and rule-making capacities that are incidental to its function, including providing for court procedure. They must also retain scope, albeit limited, to develop the common law.Footnote 117
Despite these exceptions, a legal rule that flatly contradicts the separation of powers must fall foul of Art 8 of the Basic Law. So it is with Trendtex. In R v Jones Footnote 118 (‘Jones’), the House of Lords held that the automatic incorporation of custom would no longer create crimes at common law. That task should now be left to Parliament. In truth, this extends to all custom, penal or not. All law-making is a sensitive task that constitutional arrangements such as the Basic Law entrust to specified bodies. This is undermined where the judiciary, under the guise of identifying custom amenable to automatic incorporation, significantly alters municipal rights and obligations.Footnote 119
Further analysis compounds the inconsistency with the separation of powers. The executive, in its conduct of international relations, contributes to the content of custom. Its state practice and opinio juris can lead to the emergence of a norm and its elevation to the status of jus cogens. More broadly, for all custom falling short of jus cogens, the executive possesses a ‘negative veto’, most notably the capacity for persistent objection. By choosing whether to do so, the executive can determine which norms might attract Trendtex in the first place and, thus, decide municipal law.Footnote 120
The judiciary, too, exceeds its brief with Trendtex, as the application of automatic incorporation confers an excessive discretion upon the courts. First, as C itself demonstrates, the existence of a custom is often unclear.Footnote 121 A municipal court might be more cautious than international tribunals,Footnote 122 which have occasionally rendered custom ‘essentially judge-made law’.Footnote 123 However, as C itself reveals, there will often be significant scope for domestic judicial creativity, far exceeding the incremental development that characterizes regular common law. Second, as Jones demonstrates, the courts can select which customary norms are eligible for automatic incorporation, with few constraints.Footnote 124
Lastly, even where the courts allow a norm to come under Trendtex, they still have authority to determine precisely how it will operate as domestic law.Footnote 125 Will it confer an immunity? Will it create a tort? Does it limit a statutory discretion cast in general terms? May the custom play any part in administrative law? The answers to many of these questions are unclear.Footnote 126 Perhaps their resolution resembles classic judicial work more closely than the tasks already described. Nonetheless, they represent a final level of uncertainty following a noticeably broad judicial discretion. In short, Trendtex sidelines the legislature, permits executive interference in law-making and leaves the bench dangerously unbridled in respect of the same. It should be held to contravene the Basic Law.
D. True Role of Trendtex in C
1. Chung inconsistency
Yet, if one assumes Trendtex survived reunification, was the remainder of Hartmann J's reasoning beyond reproach? The essence here is Chung inconsistency. It may only flow from legislation or common law. Executive action might hinder or prevent a customary norm from attracting Trendtex through state practice, opinio juris or persistent objection. However, once a customary norm relevantly applies at public international law, the executive is rightly powerless to prevent its automatic incorporation.
Accordingly, in C, Hartmann J correctly focused on whether non-refoulement of refugees was contradicted by the Immigration Ordinance. His Lordship found this to be so, as the legislation enabled refusal of permission to remain, even where a person was a refugee under international law. The reasons given by Hartmann J closely reflected those relating to persistent objection. However, by this stage, the context was very different. Whatever may be said of Hartmann J's findings on persistent objection, there was ample justification for his Lordship's understanding of the Immigration Ordinance.
While they were not discussed by his Lordship, there are several authorities relevant to the issue. The practices of the UK in relation to refugee law differ from Hong Kong's. Like Hong Kong, it has traditionally refrained from recognizing non-refoulement of refugees in primary legislation, falling back on a general discretion to grant or refuse leave to enter or remain. However, unlike Hong Kong, a statutory policy document, called the ‘Immigration Rules’, indicated that the discretion is to be exercised in light of international refugee law. While such an approach could arguably have been terminated, it meant that, for practical purposes, the Convention and Protocol was incorporated into English municipal law.Footnote 127 The primacy of the Convention and Protocol has since been recognized by Statute.Footnote 128
Accordingly, the point before Hartmann J has never been directly considered by English courts. However, there have been other situations where parties have argued that the general discretion is limited by customary international law. In R v Secretary of State for Home Department; Ex parte Thakrar Footnote 129 (‘Thakrar’), concerning a Ugandan Asian had been refused leave to enter the UK. He challenged this decision on the ground that, under customary international law, he was a British protected person and, thus, entitled to entry under that law like any other national.
Orr LJ and Lawton LJ, with whom Lord Denning MR essentially agreed, denied automatic incorporation of any such custom due to Chung inconsistency. Their Lordship's reasoning was somewhat different from that of Hartmann J. They did not base their conclusion on the specific statutory power. Rather, they found inconsistency in a broader sense. In a manner representative of his brethren, Orr LJ stated that the British immigration legislation was a ‘comprehensive code … if it had been intended to preserve any rule of international law not embraced in the code, it is in my judgment clear that express reference would have been made to the rule in question’.Footnote 130
On the other hand, Australian courts have taken a different approach. Few public international lawyers will forget the Tampa incident.Footnote 131 In the ensuing proceedings, Ruddock v Vadarlis Footnote 132 (‘Ruddock’), the Full Federal Court had to consider whether the Australian immigration legislation exhaustively prescribed entry into the state or whether there remained scope for the executive to exercise its entitlement under customary international law to exclude non-citizens. A majority, comprising the late Beaumont J and French J, now Chief Justice of Australia, ruled in favour of such scope. The Australian statute, at least as detailed as its British counterpart, did not abrogate the executive's power to exclude.Footnote 133Thakrar was not considered. However, the House of Lords has hinted it would not follow Ruddock.Footnote 134
Clearly, then, the question of whether legislation constitutes a code ousting automatically incorporated custom can be contentious. Exhaustive legislation can undoubtedly generate Chung inconsistency. However, there can undeniably be Chung inconsistency for the reason found by Hartmann J, namely that custom confers an entitlement the denial of which is permitted by statute. It is submitted that, when ascertaining Chung inconsistency, the following process should apply. If legislation expressly and unequivocally states its intention to codify, that is the end of matter.Footnote 135 However, in all other situations, a ‘direct collision’Footnote 136 between a customary norm and a particular statutory provision, such as that identified by Hartmann J, should be investigated first. It is both easier to ascertain and more specific than an implicit or vague intention to codify. Only in its absence, should the latter be pursued.Footnote 137
On this basis, one may examine the correctness of Hartmann J's construction under general principles of statutory interpretation and may not need to inquire further. Hong Kong has the advantage of being the only jurisdiction where a final appellate court has wholeheartedly adopted Frances Bennion's New Scientific System of Statutory Interpretation (NESSSI).Footnote 138 In essence, NESSSI disavows the so-called literal, golden or mischief rules. Rather, legislation must be construed according to all available and relevant interpretative factors. In the event that those factors conflict, they must be weighed and balanced to yield the legal meaning of the legislation.Footnote 139 The factors may be large in number. However, none can ever be overriding.Footnote 140
Surprisingly, at no point in C did Hartmann J actually quote or even identify the provisions of the Immigration Ordinance he was interpreting. However, his Lordship seems to have been referring to one or other of the general discretions.Footnote 141 The first point to note is that the general discretions are cast in broad terms. There is no apparent limitation according to international refugee law. Thus, the literal meaning unambiguously favours the view that the Immigration Ordinance permits derogation from that law.Footnote 142 This is presumed to be the intention of the Hong Kong legislature.Footnote 143 Accordingly, as Bennion indicates, other interpretative factors would need to be “compelling”Footnote 144 or “powerful indeed”Footnote 145 to enable a shift from the literal meaning to a strained construction denying power to repatriate refugees under international law. Even so, strained construction is a ‘growing tendency’.Footnote 146
One interpretative factor Bennion identifies is the presumption that legislation is intended to conform to international law.Footnote 147 This is of little relevance to C so far as it is triggered by treaty obligations, since there are strictly no such obligations in the present case. As indicated, for Hong Kong, the Convention and Protocol are not coercive. Certain provisions of the ICCPR and CROC are not material and, through reservations, do not apply to Hong Kong. The CPR and the various arrangements with the UNHCR would appear to be agreements of less than treaty status and, therefore, not binding under international law. Perhaps the latter, together with the Convention and Protocol, attract Bennion's presumption analogously, but with far diminished effect.Footnote 148
This basically leaves custom. As indicated, Hartmann J seemed to magnify Bennion's presumption using remarks by Scarman LJ in Phansopkar. This was mistaken. Scarman LJ's remarks were once criticized.Footnote 149 Still, they came to represent the law under what is known as the principle of legality. The principle resembles the powerful tool of remedial interpretation in s 3 of the Human Rights Act 1998 (UK) (‘HRA’). It authorizes the extreme step of limiting even general words,Footnote 150 including where they are used to confer executive power.Footnote 151 However, it only applies where fundamental rights are at issue.Footnote 152 Further, those rights must already be recognized by domestic law.Footnote 153
The position might be different if the principle of legality were extended to custom in light of automatic incorporation. This is advocated by prominent English junior Ms Shaheed Fatima.Footnote 154 It is consistent with New Zealand jurisprudence, propounded by Sir Kenneth Keith, now of the International Court of Justice.Footnote 155 Sir Kenneth believes that ‘national law is to be read, if at all possible, consistently with the related [customary] international law”Footnote 156 even if this appears ‘difficult to reconcile with the seemingly generally applicable wording’Footnote 157 of executive powers. Canadian courts may feel likewise.Footnote 158
It is conceded that the principle of legality should so operate where automatic incorporation of a custom concerning fundamental rights has previously been upheld and the courts are considering whether that incorporated has been displaced by a subsequent statute. In such circumstances, a central component of the principle, ie prior recognition by domestic law, is fulfilled. However, there is no place for the principle of legality where the courts are considering automatic incorporation of a custom for the first time and construing a statute to see if it generates Chung inconsistency. For, at this stage, the better view is that the custom is not yet part of domestic law.Footnote 159
One might argue that the principle of legality should be extended to the entire body of custom, even before automatic incorporation has been decided. However, this is a radical step. In relation to administrative discretions, it contradicts Brind. As indicated, the House of Lords there held that, despite Bennion's presumption, a statutory discretion cast in general terms would not be limited by an unincorporated treaty.Footnote 160 The foregoing is equally applicable to a customary norm where the issue of interpretation relates to Chung inconsistency, since at that stage the norm is equally unincorporated.
Thus, the principle of legality was not relevant in C. Footnote 161 Bennion's presumption applied with its regular weight.Footnote 162 To displace the literal meaning of the general discretions, more was required. Unfortunately, all other material in C was consistent with that literal meaning. The various governmental statements referred to by Hartmann J are, as explained, irrelevant. Those that were made in the legislature would not appear to fulfil the conditions for use of Hansard in statutory interpretation which is, in any event, doubtful under Hong Kong law.Footnote 163 Much the same may be said of the fact that the general discretions had never been exercised to repatriate a refugee. Absent a legitimate expectation, it was trite administrative law that no such history or policy could narrow these provisions.Footnote 164
What of other provisions in the Immigration Ordinance and elsewhere in the statute book? Both are potentially relevant.Footnote 165 The history of the Immigration Ordinance recounted above, particularly s 13A regarding Vietnamese asylums seekers, reveals only periodic and cautious engagement with international refugee law. There has never been express reference thereto, revealing a desire for flexibility instead of strict limitations according to non-refoulement of refugees.Footnote 166 Indeed, on the sole occasion where the legislature unequivocally desired to ensure non-refoulement, it said so plainly. This, of course, refers to the prohibition of the overlapping non-refoulement for torture stipulated by Hong Kong's extradition legislation.Footnote 167 Thus, Hartmann J's conclusion that the Immigration Ordinance was not constrained by customary non-refoulement of refugees was, under the relevant principles of statutory interpretation, correct.
2. Automatic incorporation and administrative action
It remains instructive to consider how, under different statutory conditions, Trendtex would have applied. This invites attention to precisely how Trendtex brings custom to the municipal plane. It seems that context is critical.Footnote 168 If a foreign state entity relies upon customary immunity from suit, it is relatively straightforward for the courts to give effect to that immunity by summarily dismissing proceedings.Footnote 169 Where a norm, such as piracy, criminalized conduct by an individual, it has been said that, historically, it was permissible for the judiciary to allow the norm to create a municipal crime.Footnote 170 Lastly, while the issue is yet to arise, a norm that prohibits, but does not criminalize, private conduct should give rise to a tort.
There is greater complexity where a norm concerns executive action. This has rarely been considered.Footnote 171 The key authority is Chagos Islanders v Attorney-General Footnote 172 (‘Chagos Islander’). It concerned executive action falling outside statutory powers, in the form of wholesale removal of inhabitants from an overseas territory. This arguably contravened a norm prohibiting exile. When the matter was litigated, the claimants argued that automatic incorporation led to tortious liability.Footnote 173 Much as Ouseley J recounted, the common law precludes tortious liability for conduct that is intra vires. Where conduct is ultra vires, a complication arises. By statuteFootnote 174 and common law, the state does not generally have direct liability in tort. It tends instead to be vicariously liable for torts by its officials. It is possible for an official, in the course of exceeding powers, to commit a tort.
Thus, had there been sufficient evidence before Ouseley J, the tort of trespass to the person might have arisen for those instances where unlawful removal was effected forcibly. Alternatively, there was the tort of misfeasance in public office, which arose, inter alios, where powers were consciously exceeded in the knowledge that harm to someone may result.Footnote 175 However, Ouseley J held that there could not be a tort of exile reflecting customary international law.Footnote 176 No disapproval of this was expressed by the Court of Appeal when refusing leave.Footnote 177 His Lordship's stance seemed to be based on the sentiment that the current tortious liability of officials involves some aggravated individual wrongdoing. To create a tort of exile would instead produce liability merely because an administrative act was unlawful. This could not be allowed to occur. Rather, the only remedy lay in judicial review.Footnote 178
Ouseley J apparently asserts some form of Chung inconsistency. Doing so is questionable. The leading commentator on Crown liability, Prof Hogg QC, confirms that ‘an invalid (ultra vires) act by a Crown servant which causes damage to a private individual gives rise to no liability on the part of the servant or the Crown unless the act is a tort. The lack of legal justification removes a shield but does not provide a sword’.Footnote 179 However, it is unclear how this would be disturbed by a tort flowing from automatic incorporation of custom, such as exile. The tort would arise in a different way. Still, it would necessarily fulfil Hogg's requirements. Of course, in Chagos Islanders, this would have produced the result that every invalid act of removal in that case was tortious. Yet, this was not because the requisite tort was absent. Rather, the customary norm grounding a tort of exile was so broad as to prohibit any removal constituting exile, whether aggravated or not.Footnote 180
Thus, any barrier to automatic incorporation in Chagos Islanders had to lie elsewhere. There is a hint in Ouseley J's remark that ‘there is no parallel in any general tort because this tort can by its very nature only be committed by the state’.Footnote 181 If this statement is accepted at face value, then Chung inconsistency would be present. On Ouseley J's formulation, the tort of exile involves the direct liability of the Crown. Such liability is, with few exceptions, unavailable. Predictably, those exceptions do not include torts based on customary international law.Footnote 182 This would constitute Chung inconsistency, flowing from a combination of statute and ‘rules … finally declared … by tribunals’.Footnote 183
However, Ouseley J was arguably wrong to insist that the tort of exile involves the direct liability of the Crown. Rightly or wrongly, the courts have significant latitude in deciding upon how automatic incorporation brings a custom to the municipal plane. The courts could decide that the tort of exile imposes direct liability not on the Crown, but rather on the officials themselves. Doing so would reflect the way most existing torts are treated.Footnote 184 This would raise the issue of whether the Crown was vicariously liable. In the UK, as in Hong Kong, that liability rests on statute. It only arises in relation to torts to which the Crown ‘if it were a private person of full age and capacity … would be subject’.Footnote 185 Accordingly, vicarious liability would not extend to a tort of exile. While the tort could be committed by an official, it could not be committed by a private person.
Still, this does not, of itself, amount to Chung inconsistency. The provision does not wholly deny tortious liability where there is no correspondence with that of a private person. Rather, it merely refrains from imposing vicarious liability in such circumstances. Officials retain any direct liability at common law. The Crown may, as it once routinely did, choose to stand behind the official and meet any award of damages against him or her. Yet, is not obliged to do so.Footnote 186 In this way, a tort of exile is not necessarily precluded.Footnote 187 This reasoning is equally applicable to non-refoulement of refugees and the law of Hong Kong.
However, even if the applicants in C had so overcome Chagos Islanders, it would not have been fruitful. They were not claiming that the Director had violated the custom because they were actually refugees. Rather, the alleged violation lay in the manner in which refugee status was assessed, ie by relying on the UNHCR. As indicated, Hartmann J, in line with the English Court of Appeal, had denied that the custom had any such reach. Thus, whatever the extent of its automatic incorporation, the custom itself was simply unable to help.
3. Residual automatic incorporation despite Chung inconsistency
Is the endpoint that the applicants' submissions were completely futile? The clue lies in the insistence by Ouseley J in Chagos Islanders that the only remedy was judicial review. Presumably, his Lordship was referring to judicial review on regular grounds, unaffected by customary international law. What if, though, the automatic incorporation of that law could somehow alter those grounds?
The general position must be recalled, ie ‘customary international law is part of the common law’.Footnote 188 Of course, Chung inconsistency should first be assessed and, if found, operate to the detriment of automatic incorporation. However, it is submitted that, given the general position, Chung should only displace automatic incorporation, to the extent of the inconsistency.Footnote 189 In C, a customary entitlement to non-refoulement for refugees was inconsistent with statutory powers permitting their repatriation. Thus, no such entitlement could be transported to municipal law. In particular, even if Chagos Islanders were wrong, a tort of non-refoulement could not arise.
However, if the norm could operate in a manner falling short of such inconsistency, that operation should be effected by the courts. Was this possible in C? Again, the clue lies in authorities already considered. English and Hong Kong courts have rejected the view that unincorporated treaties could bind the executive as a relevant consideration for a statutory discretion. According those treaties any such operation breached their general separation from municipal law. The flipside must apply. If custom is generally part of municipal law, it should, absent provision to the contrary, be recognized as a relevant consideration for appropriate statutory discretions.Footnote 190
Thus, in C, immigration officials were obliged to consider customary non-refoulement of refugees. At this point, Prabakar can reenter the fray. The Hong Kong government, in taking account of the norm, must do so properly. That obligation was not discharged by reliance upon a bare conclusion of the UNHCR, without evidence or reasons.Footnote 191 Only in the presence of such material would the power to grant or refuse permission to remain be lawfully exercised. Accordingly, the applicants in C could have been granted relief. As discussed, despite appearances, this result may actually benefit the Hong Kong government.
V. CONCLUSION
It is perhaps ironic that the courts of a jurisdiction that has been so ambivalent about international refugee law would be the first to recognise customary non-refoulement of refugees. For that recognition, C commands attention. Yet, in other respects, it disappoints. Counsel for the applicants should first have explored conventional solutions, as a combination of Launder and Prabakar could have delivered the necessary relief. Hartmann J should not have found Hong Kong to be a persistent objector to the norm. While the territory is eligible for that status and an appropriate range of matters were considered by his Lordship, the requisite degree of clarity simply was not reached.
Hartmann J should have considered whether Trendtex lapsed in 1997 for breaching the separation of powers. Such a conclusion is unavoidable. Trendtex either undermines or inappropriately enhances the authority of each arm of government in Hong Kong. However, if Trendtex were to survive, Hartmann J's application of Chung inconsistency was essentially correct. In the context of statute law, such inconsistency may flow from an intention to codify and contrariety in a specific provision. The latter should ordinarily be considered first. In C, Hartmann J rightly recognised that Chung inconsistency flowed from the scope to repatriate refugees under the general discretions.
Revisiting this conclusion clarifies the place of custom in statutory interpretation. When inquiring into Chung inconsistency for the first time, the principle of legality must not be applied. It is confined to domestic law and, until that inquiry is complete, the norm has not penetrated that sphere. Rather, a less aggressive presumption of conformity with international law operates. Since Brind, that presumption is not, of itself, enough to prevent an unambiguous administrative discretion from enabling derogation.
Chagos Islanders should not have denied tortious liability. Ouseley J misapplied Chung inconsistency, overlooking the direct liability of officials for customary torts, albeit without the vicarious liability of the state. Still, a crucial point remains. Chung inconsistency does not necessarily preclude automatic incorporation. Rather, such incorporation is only barred to the extent of the inconsistency. If some municipal operation can be given to a norm, outside the realm of the inconsistency, this must arise.
Doing so in C leads to the result that customary non-refoulement of refugees was a relevant consideration for the general discretions. It was not properly taken into account by the Hong Kong government's reliance on bare conclusions as to refugee status by the UNHCR. On this approach, C should be reversed on appeal.
