International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong

Abstract

The case of Hong Kong, a former British colony which since 1997 has become a Special Administrative Region of the People’s Republic of China, provides an interesting case study of the interaction of international human rights law and domestic constitutional law and the internationalisation of constitutional law. Hong Kong has, since 1991, introduced constitutional and legislative arrangements to enable the human rights norms in International Covenant on Civil and Political Rights to have constitutional force in Hong Kong, to be justiciable before the Hong Kong courts and to be used as yardsticks for constitutional judicial review of legislative and governmental actions. This system has continued to operate effectively after the handover in 1997 under the new constitutional regime established by the Basic Law of the Hong Kong Special Administrative Region enacted by the PRC.

Part II of this article provides an overview of the application of the norms of international human rights in the domestic law of the HKSAR. Part III consists of several case studies of major court cases in recent years that illustrate the internationalisation of constitutional law in Hong Kong. Part IV seeks to locate the case of Hong Kong in the international and global context, and to develop a conceptual framework for the study of the internationalisation of constitutional law. It seeks an understanding or explanation of the internationalisation of constitutional law in the HKSAR in terms of the lack of an indigenous constitutional tradition in Hong Kong and the peculiar mentality of the people of Hong Kong living under “one country, two systems”, particularly their anxiety regarding the “mainlandization” of Hong Kong and their aspirations for the preservation of civil liberties and the maintenance of their cherished way of life.