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One Country, Two International Legal Personalities

One Country, Two International Legal Personalities: The Case of Hong Kong

Roda Mushkat
Copyright Date: 1997
Pages: 232
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  • Book Info
    One Country, Two International Legal Personalities
    Book Description:

    The transition from British to Chinese rule, although widely anticipated, is shaping up as one of the most challenging events in Hong Kong's history. It also constitutes a highly complex exercise in social, political, economic and legal engineering from an international perspective. The intricacies of the transition, both at the analytical and practical levels, have been addressed by scholars in different fields. The international legal dimension of the process, however, has thus far been tackled in a piecemeal fashion. The purpose of this book is to examine the key relevant issues within a single framework, highlighting the interconnections in as broad as possible a context. The author employs international legal concepts to assess, from a normative standpoint, the underpinnings of the unique 'one country-two systems' formula devised by Britain and China, focusing in detail on questions such as Hong Kong's international legal status, jurisdictional competence, international legal obligations, human rights, pivotal aspects of treaty law and the relationship between Hong Kong's domestic law and international law.

    eISBN: 978-988-220-234-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    Jerome A. Cohen

    China’s resumption of sovereignty over Hong Kong is a unique and important event in world affairs. It has already spawned a large body of literature in China, as well as elsewhere. If handled well, the reintegration of the British colony into the People’s Republic will have a strong positive impact upon both international relations and China’s modernization. Whatever the outcome, the implications of the daring ‘one country, two systems’ formula will be profound for every area of Chinese life, not only in Hong Kong but also in the mainland. 1997 marks the start of the PRC’s experimentation with federalism.


  4. Preface
    (pp. ix-xii)
  5. Chapter 1 Hong Kong’s Status in International Law
    (pp. 1-42)

    Defining Hong Kong’s international legal status poses a daunting challenge to an international lawyer confronted with an entity which is not a ‘state’ — yet possessing ‘stately attributes’; not ‘sovereign’ — yet ‘highly autonomous’; not a ‘conventional’ member of the international community — yet a most respectable ‘actor’ on the international stage. Further, the validity of traditional notions of ‘statehood’ and ‘sovereignty’ is increasingly questioned in light of fundamental continuing changes in the structure of international relations. The traditional focus is particularly difficult to reconcile with the emerging pattern of shifting alliances, proliferation of new forms of identity, multiple tiers...

  6. Chapter 2 Issues of Jurisdiction
    (pp. 43-84)

    Hardly astonishing is the fact that international law, which contains few clearly defined rules regarding the jurisdictional competence of states,¹ also offers limited guidance in respect of the nature and extent of jurisdiction exercised by non-state entities such as Hong Kong. The argument may nonetheless be made that, given the territory’s ‘international legal personality’ and prominence in the international arena, jurisdictional issues affecting Hong Kong are best examined in the context of international — as distinct from municipal — law.

    It is reasonable to assert that Hong Kong’s possession of the factual ‘stately’ attributes of defined territory and permanent population...

  7. Chapter 3 Hong Kong’s International Legal Obligations
    (pp. 85-108)

    As a party to many international agreements and by virtue of treaties extended to the territory, Hong Kong has assumed international legal obligations in a wide range of fields, including civil aviation, communications, conservation, customs, drugs, economics and finance, health, human rights, intellectual property, international crime, labour, marine pollution, merchant shipping, nationality and refugees, politics and diplomacy, private international law, and science and technology.¹ International obligations are also imposed on Hong Kong under rules of customary or general international law, which apply to all members of the international community regardless of participation in specific conventions.² The territory may incur further...

  8. Chapter 4 Hong Kong and Human Rights
    (pp. 109-136)

    Few issues pertaining to the transfer of sovereignty over Hong Kong have engendered as much anxiety in the territory as those related to nationality and its perceived offshoots (citizenship, right of abode, permanent residence, passports). Such concern is easily comprehended, given the important attributes of nationality under international law — including the entitlement to diplomatic protection abroad and the right to enter or leave one’s country¹ — as well as the significant political and social ramifications of nationality in post-1997 Hong Kong.² This topic, therefore, has been selected for particular attention within the broader context of human rights protection in...

  9. Chapter 5 Problems of Treaty Law
    (pp. 137-162)

    Hong Kong affords discussion of several interesting questions in international treaty law, including notably the controversial issue of ‘unequal treaties’. The view propounded under this concept is that treaties concluded between parties of incomparable strength or conferring non-reciprocal obligations are invalid and can be unilaterally abrogated at any time. Hence, treaties between economically powerful and much weaker states whereby the latter grants extensive privileges and facilities to the former do not impose legally binding obligations. In this vein, China considers as ‘unequal’, and hence null and void, all treaties it was ‘compelled’ (because of military disadvantage) to enter in the...

  10. Chapter 6 Interrelationship Between International Law and Hong Kong Domestic Law
    (pp. 163-188)

    As seen in earlier chapters, notwithstanding the territory’s non-sovereign status, the Hong Kong legal system has had to address several issues in the field of international law, including the scope of local jurisdictional powers, extradition matters, treatment of aliens, obligations under the international laws of human rights and the environment, succession to membership in international organizations and agreements, as well as the effect and interpretation of treaties in domestic law. To facilitate comprehension of the extent to which international law is applied and enforced in Hong Kong, a review of the general relationship between international law and the domestic law...

  11. Epilogue
    (pp. 189-190)

    This book focuses on Hong Kong as a highly autonomous territory from an international legal perspective. The approach is grounded in a broad normative framework which transcends constraints imposed by narrowly-based shifting political configurations. The spirit pervading the text is consistently positive in affirming the vision inspired by the 1984 Sino-British Joint Declaration.

    It needs to be acknowledged, however, that the implementation of this vision hinges on the political realities unfolding in both China and Hong Kong — perhaps even Taiwan — and the quality of the relationship between Beijing and the outside world. These crucial non-legal factors could either...

    (pp. 191-194)
    (pp. 195-214)
  14. Index
    (pp. 215-220)