TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 139

everyday judicial duties,

•

by the

use

of wholly orthodox

techniques of common law exposition and development.

Both China and the United Kingdom have followed the

"incorporation" principle for international law.

other legal jurisdictions, where international

Unlike some

law is taken

to be part of domestic law, China, like the United Kingdom,

insists

the dichotomy. Unless international

upon

law is

a valid local law, it is not

In the United Kingdom, this

specifically incorporated by a

part

44

of

domestic law.

principle has recently been reasserted by the highest court.

In Reg v Secretary of State for the Home Department; Ex parte, Brind5, the House of Lords held that the European

Convention for the Protection of Human Rights and Fundamental

Freedoms is not part of English domestic law.

Although the

in

presumption that Parliament intended to legislate

conformity with the Convention might be resorted to in order

to resolve ambiguity or uncertainty in a statutory provision,

if such provision were clear, the statute must be given

But

effect to. This is so notwithstanding that the law does not

then comply with the Convention. There is much in the

speeches in Brind which repays careful reading.

there is nothing in them which conflicts with an important

new idea now being promoted within the Commonwealth of

Nations. This is an idea designed to give new relevance to

developing international human rights law. It is an idea

with high relevance to Hong Kong.

The new idea is expressed

Principles" which were

in "The Bangalore

contained in a concluding statement

by Justice P N Bhagwati, the former Chief Justice of India,

at the close of a Judicial Colloquium on International Human

19 ·