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Article: Why are Hong Kong judges keeping a distance from international law, and with what consequences? Reflections on the CFA decision in DRC v FG Hemisphere

TitleWhy are Hong Kong judges keeping a distance from international law, and with what consequences? Reflections on the CFA decision in DRC v FG Hemisphere
Authors
Issue Date2011
PublisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/
Citation
Hong Kong Law Journal, 2011, v. 41 n. 2, p. 401-410 How to Cite?
AbstractIn DRC v FG Hemisphere both the majority and minority opinions in the Court of Final Appeal treated international law as irrelevant for the decision which was supposed to be taken on the basis of constitutional principle alone. This was a mistaken course with potentially very negative consequences for the rule of law in Hong Kong. The minority treated decisions taken on sovereign immunity by HK courts in the past as frozen into precedents in common law and therefore deriving their strength only from the common law of Hong Kong. On the other hand the majority effectively decided that any issue coming before it which involves international law is automatically a matter of foreign affairs and that it is up to the PRC to tell the HK courts what is the interpretation of international law. The article argues that in future HK courts should treat the law of sovereign immunity as sui generis having no implications for their approach to other international law questions.
Persistent Identifierhttp://hdl.handle.net/10722/164157
ISSN
2015 Impact Factor: 0.215
2015 SCImago Journal Rankings: 0.101
ISI Accession Number ID

 

DC FieldValueLanguage
dc.contributor.authorCarty, Ten_US
dc.date.accessioned2012-09-20T07:56:02Z-
dc.date.available2012-09-20T07:56:02Z-
dc.date.issued2011en_US
dc.identifier.citationHong Kong Law Journal, 2011, v. 41 n. 2, p. 401-410en_US
dc.identifier.issn0378-0600-
dc.identifier.urihttp://hdl.handle.net/10722/164157-
dc.description.abstractIn DRC v FG Hemisphere both the majority and minority opinions in the Court of Final Appeal treated international law as irrelevant for the decision which was supposed to be taken on the basis of constitutional principle alone. This was a mistaken course with potentially very negative consequences for the rule of law in Hong Kong. The minority treated decisions taken on sovereign immunity by HK courts in the past as frozen into precedents in common law and therefore deriving their strength only from the common law of Hong Kong. On the other hand the majority effectively decided that any issue coming before it which involves international law is automatically a matter of foreign affairs and that it is up to the PRC to tell the HK courts what is the interpretation of international law. The article argues that in future HK courts should treat the law of sovereign immunity as sui generis having no implications for their approach to other international law questions.-
dc.languageengen_US
dc.publisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/en_US
dc.relation.ispartofHong Kong Law Journalen_US
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.titleWhy are Hong Kong judges keeping a distance from international law, and with what consequences? Reflections on the CFA decision in DRC v FG Hemisphereen_US
dc.typeArticleen_US
dc.identifier.emailCarty, T: tcarty@hku.hken_US
dc.identifier.authorityCarty, JA=rp01239en_US
dc.description.naturepublished_or_final_version-
dc.identifier.scopuseid_2-s2.0-84858400345-
dc.identifier.hkuros210253en_US
dc.identifier.volume41en_US
dc.identifier.issue2-
dc.identifier.spage401en_US
dc.identifier.epage410en_US
dc.identifier.isiWOS:000301880600009-
dc.publisher.placeHong Kong-

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