Wednesday, July 18, 2018

Yash Ghai: "Is Kenya in the danger of dependence on China?" (The Star)

7 July 2018
I am prompted to write this column by the remarkable statement of a scholar in Hong Kong on a recent visit there that China was on the verge of bankruptcy.
     Consequently countries that depend on loans from Chinese authorities are ill advised, as it is likely to be a device to trap the borrower. Some Hong Kong-based scholars were critical of another aspect: The integrity of Mainland China. It had reneged on the 1984 agreement between China and Britain guaranteeing Hong Kong’s autonomy as the condition for the transfer of sovereignty over Hong Kong back to China.
     Last year, when I was in Sri Lanka, I was told that country had made a serious error by moving its primary relations from India to China, for Chinese will exact a heavy price for its “grants or assistance”. I began to worry about the price we in Kenya will have to pay for huge loans and other “assistance” that our government had obtained from China — not least that has gone into the SGR, which the government never tires of advertising in the media as a great success. The Chinese government has also started making public declarations that it is “not increasing the public debt burden of African countries”... Click here to read the full text. 

Tuesday, July 17, 2018

New Issue of Asia-Pacific Journal of Human Rights and the Law (Issue 1 of 2018)



Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden



Research Articles
The Rohingya Refugee Crisis and Human Rights: What Should ASEAN Do?
Author: Zezen Zaenal Mutaqin
Source: Volume 19, Issue 1, pages: 1 –26

LGBTI Rights in Indonesia: A Human Rights Perspective
Author: Eleni Polymenopoulou
Source: Volume 19, Issue 1, pages: 27 –44

Can an Open Access Approach be the Solution to Better Implementation of the Right to Information Act in Bangladesh?
Authors: Harold Sougato Baroi; Shawkat Alam and Carlos Bernal
Source: Volume 19, Issue 1, pages: 45 –68

Book Reviews
Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India, written by Sital Kalantry
Author: Rangita de Silva de Alwis
Source: Volume 19, Issue 1, pages: 69 –73

Human Rights in China: A Social Practice in the Shadows of Authoritarianism, written by Eva Pils
Author: Han Zhu
Source: Volume 19, Issue 1, pages: 74 –79

Hualing Fu Interviewed by SCMP on Crackdown on Chinese Human Rights Lawyers, Three Years On

Nectar Gan
South China Morning Post
8 July 2018
Sui Muqing was thinking about leaving the law altogether. The forty-something graduate of one of China’s top law schools had an established career in commercial and criminal litigation in the southern Chinese city of Guangzhou but was disillusioned by the day-to-day reality.
     “I often felt like a worthless wimp, having to cultivate favour with the authorities and judges. It was merely a job to make a living – I got so tired of it over time,” he said.
     That all changed when he met the city’s leading human rights lawyer Guo Feixiong and found another way to use his advocacy skills.
     Sui was inspired by Guo’s example and started representing the poor and vulnerable, either for free or minimal fees.
     “You can’t only think about the money. There is also the question of dignity, your self-worth, your social value, to which you can find an answer in a rights lawyer’s work,” he said.
      But now Sui is suffering the consequences of his decision, barred from working as a lawyer in the aftermath the “709” crackdown on or soon after July 9, 2015.
     He was one of about 300 rights lawyers, legal assistants and activists rounded up across the nation in a major clampdown on dissent.
     Three years on, those events still reverberate in the rights community, with a string of disbarments, new stifling regulations on lawyers and law firms and the ever-extending reach of the Communist Party into the legal profession.
     Fu Hualing, a law professor at the University of Hong Kong, said the crackdown symbolised “the end of an era” of promoting rule of law and human rights that started in the early 1990s.
     In China, “human rights” did not became part of the official lexicon until 1991, when the State Council, the country’s cabinet, published its first white paper on the subject. At the time, all lawyers were civil servants on the government payroll, but five years later, with the passage of China’s first lawyers law, they became an independent profession... Click here to read the full article.

Monday, July 16, 2018

HKU Law Students Excel in Mooting Competitions (Maritime Law and Competition Law)

L-R: A Fung, J Ma, K Lee, F Chan,
R Cheung
The 19th International Maritime Law Arbitration Moot 
Competing against 29 universities from 14 overseas jurisdictions, the HKU Maritime Law Moot Team was awarded the 1st Runner-Up of the Oral Hearings held in Brisbane, Australia from 29 June to 3 July 2018. The 2018 Maritime Law Moot Team consisted of Alex Fung (PCLL), Justin Ma (PCLL), Ferrida Chan (BBA-Law) and Ryan Cheung (LLB), coached by Mr. Ken Lee. 
L-R: K Lee, R Cheung, A Fung, J Ma,
F Chan
    During the group stages, the Team came in 6th overall and later defeated both the National University of Singapore and University of Malaya to advance into the grand finals held in the Federal Court of Australia in Brisbane. Our heartfelt thanks go to Professor Anselmo Reyes, Dr Felix Chan, Mr. Winky So and the previous award-winning team for their comments in various practice sessions; and Mr. Ken Lee, our team coach, for his unwavering support throughout the year. 
HKU Competition Law Team Captured Best Written Pleadings Award 
The HKU Competition Law Team won the Best Written Pleadings Award for the written round on route to the semi-finals of the annual Herbert Smith Freehills Competition Law Moot from 15 to 16 June 2018. Guided by Mr. Thomas Cheng and Mr. Kelvin Kwok, the 2018 Competition Law Moot Team comprised of 4 PCLL students –Yuet Yi Cheng, Law Wai Tsun Hazel, Ng Chun Wai Jonathan and Karen Tsang Nga Yue. The Team advanced to the oral rounds hosted by King’s College London based on the strength of its written memorandum. 
L-R: J Ng, H Law, T Cheng, YY Chen,
K Tsang
     After winning all its moots in the preliminary stage with Wai Tsun Hazel capturing an oralist award, the Team subsequently lost in the semi-finals to KCL which was ultimately the winner of this year’s competition. The Faculty is grateful for the valuable support from team coaches Thomas Cheng and Kelvin Kwok and various practitioners and ex-mooters including Mr. Sunny Chan, Ms. Tiffany Chan, Ms. Jasmine Cheung, Mr. Tommy Cheung, Mr. Byron Chiu, Mr. Joshua Kanjanapas, Mr. Kevin Lau, Mr. Joe Lee, Ms. Rosa Lee, Ms. Allison Wong, and Ms. Stephanie Wong for their kind assistance. 

Sunday, July 15, 2018

Douglas Arner and Janos Barberis Among LATTICE80's Top 50 Hong Kong Fintech Influencers

LATTICE80, a global Fintech hub based in London, has been identifying key people that contribute to the Fintech industry as influencers through action.  Their recent list published on 10 July 2018 identifies the top 50 fintech influencers in Hong Kong "whom you must follow to keep in the know of latest developments and trends in the industry".  We're pleased to see Professor Douglas Arner, Kerry Holdings Professor in Law, and PhD candidate Janos Barberis (SuperCharger and FinTech Accelerator) were both recognised on this list.
    As a Council member of Hong Kong's Financial Services Development Council (FSDC), Professor Arner recently attended the FSDC's press conference on 22 June 2018 releasing the report entitled "Building the Technology and Regulatory Infrastructure of a 21st Century International Financial Centre: Digital ID and KYC Utilities for Financial Inclusion, Integrity and Competitiveness".  The report presents "the central elements of an essential strategy to put in place the necessary technological and regulatory infrastructure for digital identification and eKYC to support Hong Kong's role as a leading 21st century international financial centre" (p 2).

Saturday, July 14, 2018

Friday, July 13, 2018

RGC Awards $6 Million in Research Grant Funding to HKU Faculty of Law

Congratulations to our 11 colleagues who were successful in the 2018-2019 round of research grant funding by Hong Kong's Research Grants Council (RGC).  The success rate for General Research Fund (GRF) projects was 73%, a little better than last year.  The projects cover a range of legal topics of importance to Hong Kong, China and beyond.  This year the largest grant was awarded to Dr Richard Wu for his ongoing and expansive study of law student values.  This is the fifth RGC grant Dr Wu has received in support of his comparative study of law students in 14 jurisdictions.  The details of the new 11 GRF projects are as follows:

Thursday, July 12, 2018

New Issue of Hong Kong Law Journal (Part 1 of 2018)


Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Comment
The Law Society’s Power to Introduce a Common Entrance Examination Johannes Chan  1

Analysis
Malice through the Looking Glass Brendan Clift  11

Alternate Dispute Resolution for Medical Disputes Albert Lee  23

Co-location is Constitutional Po Jen Yap and Jiang Zixin 37

ARTICLES
Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong Cora Chan  51

The Doctrine of Legitimate Expectations: International Law, Common Law and Lessons for Hong Kong Julien Chaisse and Ruby Ng 79

Reasonableness Review in Investor-State Dispute Settlement: Fostering Normative Coherence through Interpretative Flexibility Collins C Ajibo 105

Managing the Risks of Corporate Fraud: The Evidence from Hong Kong and Singapore Wai Yee Wan, Christopher Chen, Chongwu Xia and Say H Goo 125

The Duty of Hong Kong Courts to Follow the NPCSC’s Interpretation of the Basic Law: Are There Any Limits? Lin Feng 167

Less is More? Different Regulatory Responses to Crowdfunding and Why the Hong Kong Model Stacks Up Well Alexa Lam 191

CHINA LAW 
Politicised Legal Discourse and Judicial Accommodation of Petitioners in Chinese Courts Yuqing Feng and Qing Xu  233

Re-conceptualising Private Law: The Struggle for Civil Codification in China Jianfu Chen 257

Rights Protection for Persons with Mental Disability in China: An International Human Rights Law Perspective Zhiyuan Guo 283

Regulation of Sponsors in China: Political Will, Regulators’ Desire and Market Demands Tianshu Zhou and Wenjing Li 323

Book Review
In Search of the Way: Legal Philosophy of the Classic Chinese Thinkers Scott Veitch 359

Johannes Chan on the Law Society's Power to Introduce a Common Entrance Examination (HKLJ)

"The Law Society's Power to Introduce a Common Entrance Examination"
Johannes Chan
Hong Kong Law Journal
2018, Vol. 48, Part 1, pp. 1-10
Introduction: Legal education in Hong Kong can be broadly divided into three stages: (1) an academic stage involving the completion of a law degree at a university or the equivalent; (2) a vocational stage involving the study of a one-year course of Postgraduate Certificate in Laws (PCLL) at one of the law schools in Hong Kong, the course focusing on legal skills that are required for practice and aiming at preparing students for a transfer from the academic stage to legal practice; and (3) a professional stage where students will undergo a one-year pupillage with a barrister or a two-year traineeship with a solicitors firm before admission to full practice. The PCLL is a statutory qualification to legal practice. For historical reasons, it is administered by the law schools, with strong participation of the two professional bodies. In recent years, the Law Society has put forward a controversial proposal to introduce a Common Entrance Examination after the completion of the PCLL as an additional hurdle to admission to the solicitors' branch of the legal profession. The proposal met with strong opposition from all stakeholders, including the Bar Association. The consultants on legal education appointed by the Standing Committee on Legal Education, the statutory body overseeing legal education, recently commented in their interim report that there was no sufficient or convincing justification for the introduction of the Common Entrance Examination. One aspect of the controversy is whether the Law Society has the power to introduce such an examination...  Click here to download the full comment.

Po Jen Yap & Jiang Zixin on "Co-location is Constitutional" (HKLJ)

Po Jen Yap and Jiang Zixin (JD 2018)
Hong Kong Law Journal 
2018, Vol. 48, Part 1, pp. 37-50
Abstract: In this comment, we argue that the co-location arrangement proposed by the Hong Kong Special Administrative Region Government is consistent with the Basic Law. Co-location does not engage art 18 of the Basic Law because, for the purpose of art 18, the land comprising the Mainland Port Area (MPA) would no longer be in Hong Kong. This is the legal consequence of the Government’s exercise of its power under art 7 of the Basic Law to relinquish legal control over land. Specifically, the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA in favour of the PRC authorities for customs, immigration and quarantine procedures as (1) co-location is derivative of, and in service to, the Government’s power under art 7 of the Basic Law to lease land; (2) the Government’s aim of achieving efficient high-speed rail interconnectivity between Hong Kong and Mainland China is legitimate; (3) co-location is reasonably adapted to the attainment of this legitimate aim; and (4) co-location does not violate fundamental rights enjoyed by residents living in Hong Kong. Since the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA for co-location, the provisions that deem the MPA outside Hong Kong are constitutional, and therefore, the land comprising the MPA would not be in Hong Kong for the purpose of art 18.

Cora Chan on "Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong" (HKLJ)

Hong Kong Law Journal 
2018, Vol. 48, Part 1, pp. 51-78
Abstract: Around the world, it is common for courts to defer to executive or legislative authorities in adjudicating human rights issues, on the ground that the latter possess more expertise or democratic legitimacy to assess such issues. Hong Kong is no exception. This article reports the findings of the first empirical study of judicial deference in this jurisdiction. This study identified how often deference arose as an issue in human rights cases, what jurisprudence shaped the courts’ approaches to deference, and the relative impact of various factors on the degree of deference between 1997 and 2014. These findings will enhance an understanding of deference and provide an empirical basis for descriptions on, and normative assessments of, the courts’ approaches to deference.

Wan, Chen, Xia & Goo on "Managing the Risks of Corporate Fraud: The Evidence from Hong Kong and Singapore" (HKLJ)

"Managing the Risks of Corporate Fraud: The Evidence from Hong Kong and Singapore"
Wai Yee Wan, Christopher Chen, Chongwu Xia and Say H Goo
Hong Kong Law Journal
2018, Vol. 48, Part 1, pp. 125-166
Abstract: Since the Asian financial crisis of 1997, Hong Kong and Singapore have implemented reforms that promote independence and monitoring competency of the boards of directors of their listed companies. However, with the advent of the financial crisis of 2007/2008, a wave of fraud cases prompted the question as to the effectiveness of these reforms. Analysing a sample of 62 listed companies which were found to have committed fraud between 2007 and 2014 and comparing them against a matched sample of non-fraud companies, we found that fraud companies tend to combine the roles of chairman and chief executive officer (or they are close family members) and have fewer non-accounting finance experts on their boards. They were also likely to be overseas Chinese firms. Analysing the specific case studies of fraud, the reasons for the lack of effectiveness in the independent directors in preventing fraud are likely due to the difficulties in obtaining access to information in approving conflicted transactions, low threat of enforcement actions, their incentives to side with controlling shareholders and the challenges in regulating foreign listings.

Alexa Lam on Regulatory Responses to Crowdfunding and the Hong Kong Model (HKLJ) 

"Less is More? Different Regulatory Responses to Crowdfunding and Why the Hong Kong Model Stacks Up Well"
Alexa Lam
Hong Kong Law Journal
2018, Vol. 48, Part 1, pp. 191-232
Abstract: This article debunks the myth that securities regulation in Hong Kong is less accommodating to crowdfunding (CF) activities when compared to regulation in other international financial centres. While the Securities and Futures Commission has been less proactive in responding to calls for lighter regulation on CF, this article shows that Hong Kong’s existing securities regulation does not lag behind in providing gateways for CF activities. Among the gateways available, while the small-size offering exemption threshold is lower than those provided in other jurisdictions such as the United Kingdom or Singapore, when it comes to raising capital from accredited investors — the type of investors most coveted by entrepreneurs and start-ups — the Hong Kong regime is more friendly. In fact, it is arguably broadly on the same page as the accredited investor exemption regime in the United States. This article examines how the key exemptions to securities regulation in Hong Kong can be fully utilised in the context of CF, especially after the recent Court of Final Appeal decision in Securities and Futures Commission v Pacific Sun Advisors Ltd. As it appears that the market has not fully grasped the purport of Pacific Sun, this article attempts to untangle the regulatory thicket. Hopefully, small and emerging companies will see the potentials of Hong Kong as a platform for capital raising via the Internet.

Special Symposium Issue on "Decentralization and Development" in Minnesota Law Review Co-Edited by Qiao & Epstein


The current issue of the Minnesota Law Review, issue 4 of volume 102, publishes papers from a special symposium on decentralisation and development held at the Faculty of Law, The University of Hong Kong on 14-15 March 2017. It is co-edited by Shitong Qiao (HKU Law) and Richard Epstein (NYU Law).  A group of Asian and American scholars working in the areas of law, economics, and political science debated and discussed questions including what does decentralisation mean, how do we best measure decentralisation, is interjurisdictional competition a race to the bottom or a race to the top, is decentralization desirable in the context of China and other jurisdictions and so on.  The symposium was co-sponsored by New York University's Classical Liberal Institute and HKU's Centre for Chinese Law.  In addition to co-authoring the introduction with Professor Epstein, Dr Qiao also authored "Rights-Weakening Federalism" and co-authored "Binding Leviathan: Credible Commitment in an Authoritarian Regime" in this special issue.  All articles are freely accessible here.  

Shitong Qiao on "Rights-Weakening Federalism" (Minnesota L Rev)

"Rights-Weakening Federalism"
Shitong Qiao
Minnesota Law Review
Apr 2018, Vol. 102 Issue 4, pp.1671-1702
Abstract: This Article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism. This China case also has general theoretical implications. Leading property law scholars in the United States have debated whether federalism protects land rights for decades but have achieved no consensus. The existing debate centers around the immobility of land, however, this Article argues that land immobility is not an essential factor. The structure and power of local governance, the balance between land and capital in particular, matters much more. Hence, the better question to ask with respect to interjurisdictional competition is who benefits from the competition. This Article also poses a more fundamental challenge to the literature on interjurisdictional competition by adopting agglomeration economics, which poses the question of whether such competition constitutes sorting or agglomeration. All the existing literature on property rights and federalism presumes a market of sorting--that investors are indifferent to location, and are thus attracted by local governments offering the best price or strongest protection. However, urbanization and industrialization in China are actually a process of agglomeration, which determines that a few cities with a natural, or at least initial, advantage are taking over, and the local governments of the remainder will therefore eventually lose in the competition. The implication is that interjurisdictional competition is a race to the bottom for most local governments rather than a win-win game as the sorting literature suggests.  Click here to download the full article.

Roderick Hills and Shitong Qiao on "Binding Leviathan: Credible Commitment in an Authoritarian Regime" (Minnesota L Rev)

Roderick M Hills Jr and Shitong Qiao
Minnesota Law Review 
Apr 2018, Vol. 102 Issue 4, pp. 1591-161
Abstract: The problem of credible commitment dogs every government, whether democratic or authoritarian. Authoritarian bureaucracies face special credible commitment problems. Fear that local officials will build up a local power base has historically induced the leadership of China, Imperial and Communist alike, to frequently transfer local officials among subnational jurisdictions. Such frequent transfers undermine those officials' capacity to make the credible commitments that officials with more stable tenure can make with ease. Moreover, authoritarian regimes discourage the development of independent institutions--like investor-owned banks or locally elected legislatures--that are independent from local executive officials and that might otherwise act as monitors and enforcers of long-term commitments. We describe how these problems of credible commitment posed by China's cadre transfer policy and, more generally, the Chinese Communist Party's distrust of divided power lead to excessive municipal debt in China. We also propose three new institutional solutions for resolving the credible commitment problem of China's authoritarian regime. In the end, we conclude that there is no magical solution that can reassure stakeholders, such as lenders or home buyers, that an autocratic mayor will follow through on his or her promises. All of our proposed solutions, however, trade on the intuition that even modest institutional limits on power, compatible with China's one-party system of democratic centralism, can mitigate the problem of powerlessness ironically created by authoritarian power.  Click here to download the full article.

Thursday, July 5, 2018

Richard Cullen on "Tight-fisted historical land policy had a point" (China Daily)

"Tight-fisted historical land policy had a point"
25 June 2018
In this article I do not wish to enter the thorny debate on how to alleviate this building land shortage. My aim is to examine one pivotal factor that has, since 1842, constrained the release of land for building in Hong Kong. As it happens, it is also a factor with an often overlooked, distinctive upside. ...
     Robust and effective judicial, legal and policing systems are expensive to establish and maintain if they are going to serve all in a community with some level of steady fairness. Hong Kong's land revenue system soon proved itself up to the task of funding these foundational institutional developments. Operational deficiencies in these bodies were evident from the outset and some remain today. Comparatively, however, Hong Kong has built - and funded - an enviable rule of law system. ...
   We are still confronted today with the awful accommodation shortfalls noted above. We should not forget, though, that the same exceptional land policy which has constrained land release in Hong Kong has left our high-density areas surrounded by nearby greenery. Still more importantly, it has bankrolled our rule of law achievements and some world-beating basic housing policies. These two successes have underpinned so much Hong Kong has accomplished. They are achievements we can rightly be proud of.  Click here to read the full text. 

Richard Cullen on "Criminal justice system works, keep it that way" (China Daily)

"Criminal justice system works, keep it that way"
Richard Cullen
China Daily
14 June 2018
Since the sentences were announced there have been strong protests about the severity of the penalties imposed, especially on Leung who was the former spokesman for Hong Kong Indigenous - a localist group. Incidentally, none of those protesting has paused to note the courage of the out-numbered policemen who brought the riot under control using the minimum force required, at serious cost in terms of injuries for a number of them.
      The array of people thus protesting included the last governor of British Hong Kong. Chris Patten is quoted as saying: "It is disappointing to see that the legislation is now being used politically to place extreme sentences on 'pan-democrats' and other activists". The relevant legislation is the Public Order Ordinance, the most significant elements of which were passed by the British Hong Kong government to give additional powers to police during the riots in Hong Kong in the mid-1960s. Shortly before the 1997 handover, the powers the British enjoyed under the ordinance until 1995 were watered down. The Provisional Legislative Council reversed these 11th-hour amendments in 1997. ...
     Patten's accusation that the Hong Kong Special Administrative Region judiciary is now in the business of applying the law with plain political intentions is not new. This is a reiterated claim. Hong Kong's former director of public prosecutions Grenville Cross has responded to similar past claims and I cannot improve on his observations: "As he (Patten) should know, Hong Kong's judiciary is fiercely independent, is comprised of men and women of integrity and is well regarded throughout Asia and beyond. Once he has cooled down, Patten may wish to withdraw his slur, and to give the judiciary his unequivocal support, given its valiant work in upholding the rule of law in Hong Kong." I can only add that it is disappointing that Lord Patten (as he now is) has lately demonstrated a comprehensive failure to heed this robust, sensible advice. ...
     We are genuinely fortunate that Hong Kong's criminal justice system is not devitalized like that in Britain (which Patten would have us emulate, it would seem). Our system has both integrity and backbone. The judges in that system understand their key role in keeping Hong Kong one of the safest large cities in the world - without fear or favor.  Click here to read the full text. 

Wednesday, July 4, 2018

CCPL Survey Finds More Than 50% Support for Same-Sex Marriage in Hong Kong

Press Release: A new report issued by the Centre for Comparative and Public Law shows that Hong Kong public opinion on same-sex couples’ rights has changed significantly in recent years. In 2013, only a minority of Hong Kong people said that same-sex couples should be permitted to marry (38%). By 2017, however, over half of people expressed agreement with same-sex marriage (50.4%). In 2017, 78% of Hong Kong people said that same-sex couples should have at least some of the rights enjoyed by different-sex couples, compared with 73% in 2013. In addition, 69% of people in 2017 said that Hong Kong should have a law to protect against sexual orientation discrimination, compared with 58% in 2013.
     The report is based on the first study ever to track changes in Hong Kong public opinion concerning legal protections for gay men and lesbians. The research was led by Holning Lau from the University of North Carolina, Charles Lau from RTI International, Kelley Loper from the University of Hong Kong, and Yiu-tung Suen from the Chinese University of Hong Kong. The team conducted a telephone survey of a representative sample of Hong Kong residents in 2013, and then repeated the survey in 2017. 
     “Our study shows that support for the rights of same-sex couples has grown markedly over a short period,” said Professor Suen. “A few years’ time has made a significant difference.”
    “Our study also illuminates a discrepancy between law and public opinion,” noted Professor Loper. “While 69% of Hong Kong people said they favor having a law to protect against sexual orientation discrimination, the government of Hong Kong has yet to enact such legislation.”
     In addition to repeating the survey questions from 2013 in 2017, the research team added a new question about immigration rights. They found that 53% of Hong Kong people said they agree that Hong Kong residents in same-sex partnerships should be permitted to apply for immigration visas for their partners; 18% were neutral and 29% disagreed.
     In response to the Hong Kong Court of Final Appeal’s decision today (July 4) in QT v. Director of Immigration, a case concerning a lesbian seeking a visa for her same-sex partner, Professor Lau said: “Our research suggests that the majority of Hong Kong people support the same-sex couple in the QT case.” 
    For the full report: http://www.law.hku.hk/ccpl/report.pdf. HKU Centre for Comparative and Public Law website: http://www.law.hku.hk/ccpl/.  Professor Loper is available for press inquiries in English at kloper@hku.hk. Professor Suen is available for press inquiries in Chinese and English at suenyiutung@cuhk.edu.hk/ tel: 3943 6624.  For press coverage of this news, see New York Times, SCMP, Pink News.

Tuesday, June 26, 2018

David Law on The Global Language of Human Rights (Law & Ethics of Human Rights)

Law & Ethics of Human Rights
2018, Vol. 12, Issue 1
Abstract: Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law?
     Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns. 
     The results highlight the existence of two species or dialects of rights talk — the universalist dialect and the positive-rights dialect — both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community. 
     The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law.  Click here to download the paper.