The Impact Of International Human Rights Law On Human Rights Protection In Hong Kong

The Hong Kong Special Administrative Region(hereinafter referred to as "Hong Kong")has traditionally invoked international human rights law resources in the field of human rights in a positive and dynamic manner,widely absorbed and drew on the experience of international human rights conventions to enrich the connotation of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China(hereinafter referred to as "the Basic Law")and general law.International human rights law has gradually become a powerful tool for the protection of human rights in the Basic Law and an important source of the development of the rule of law in Hong Kong.However,the admission of international human rights law does not imply a blunt transfer of the internationally accepted legal system,nor does it imply the validity of its constitutional status and direct application.The invocation of international human rights law in Hong Kong should follow certain normative basis and applicable rules,adhere to the Constitution of the People's Republic of China(hereinafter referred to as "the Constitution")in the core position of the legal origin system,not be contrary to the constitutional spirit and national values,which must exercise the autonomy of the interpretation of the Basic Law within the overall framework of the constitutional system.This article is divided into four parts to discuss the impact of international human rights law on Hong Kong's human rights protection:The first part expounds the impact of international human rights law on the construction of human rights rule of law before and after the return of Hong Kong to China.On the one hand,from the dimension of human rights legislation,the series of constitutional documents from the introduction of the Hong Kong Bill of Rights Ordinance(hereinafter referred to as "The Bill of Rights"),the amendment of the Letters Patent to the Basic Law have given different legal status to international human rights law.Before the return,legislation was passed to translate the Convention into local law and give it an overriding status.After the return,the constitutional provisions stipulated its supremacy were abolished.The legal status and effectiveness of the convention have been fundamentally changed.On the other hand,from the dimension of human rights justice,this paper expounds the invocation of international human rights conventions before and after the return of Hong Kong courts.Although the international human rights conventions have lost the benchmark status of legislative review after the return of Hong Kong,the application of international human rights conventions by Hong Kong courts continues unabated,and the scope of protection of rights involved is increasingly extensive.The second and third parts,respectively,take the most representative International Covenant on Civil and Political Rights(hereinafter referred to as "ICCPR")and the International Covenant on Economic,Social and Cultural Rights(hereinafter referred to as "ICESCR")as their focus,and through exploring the relevant typical jurisprudence of the Hong Kong courts invoking the above-mentioned conventions,to illustrate how Hong Kongjudges use international human rights law materials,as well as the role and influence of international human rights law norms in judgments.The convention acts as a basis for adjudication directly,or as a complement to the interpretation of the Basic Law and general law,or is evaded to apply,which plays a role in forming,strengthening or not functioning in the making of judgements.At the same time,due to the influence of the Court's competence in the application of international human rights conventions,the strength of will,the choice of ways and other factors,there are also differences in the degree of invocation of international human rights conventions in different cases by the courts.The fourth part,proceeding from the change of constitutional foundation and the provisions of the Basic Law itself,demonstrates the feasibility of the "interpretative application" of the Convention in Hong Kong by analyzing the legal status and application effect of international human rights law in Hong Kong,and excavates the issue of coincidence between constitutional interpretation and convention-based interpretation in the process of interpretation of the Basic Law.There are both uniformity and difference in the two interpretation methods.In the face of the coexistence and competition of the two methods of interpretation,it is nonsense to replace the constitutional interpretation by the convention-based interpretation.In the current context of "convention-led,constitutional absence",Hong Kong should adhere to the priornty and foundation of the domestic value with the spirit of the Constitution as its core.The purpose of invoking international human rights law is simply to reinforce the reasoning of the explanatory text,strengthen the integrity of the structure,and to provide supplementary material for the legitimacy of the judgement.