New Book by Kalana Senaratne: Internal Self-Determination in International Law (CUP)

Internal Self-Determination in International Law: History, Theory, and Practice
Kalana Senaratne (PhD 2014)
Cambridge University Press
Publication Date: December 2021

Description: Internal self-determination is an under-explored topic in international law. It is popularly understood to be a principle of relatively recent origin, promoting democratic freedoms to populations and autonomy for minority groups within states. It has also been viewed as a principle receiving the support of Western states, in particular. In this first book-length critical study of the topic, the reader is invited to rethink the history, theory and practice of internal self-determination in a complex world. Kalana Senaratne shows that it is a principle of great, but varied, potential. Internal self-determination promises democratic freedoms and autonomy to peoples; but it also represents an idea which is not historically new, and is ultimately a principle which can be promoted for different and conflicting purposes. Written in a clear and accessible style, this book will be of interest to international lawyers, state-officials, minority groups, and students of law and politics.

Sean Yau (LLB 2016) on the Legality of the Use of Force for Self-Determination (Palestine Yrbk Int'l L)

"The Legality of the Use of Force for Self-Determination"

Sean Shun Ming Yau (LLB 2016)

The Palestine Yearbook of International Law, 

2020, Vol 21, Issue1, pp. 32-76

Introduction: Self-determination is a complex animal. It is the only principle in international law which is so antithetical to State centricity – the premise of the legal architecture – and yet is one of the most fundamental principles of the discipline. More than 70 years after the adoption of the United Nations (UN) Charter, when the principle of self-determination first became black-letter law, today almost every aspect of its scope and content remains highly unsettled. To some, this concern is immaterial because they consider the principle obsolete and no longer applicable in today’s world. Over the past decade, the International Court of Justice (ICJ), in its Advisory Opinions on Kosovo and recently on Chagos, has shown otherwise. It not only left the door open whether international law permits a right to secession; even more, it demonstrated that the process of decolonization might be void if unlawfully completed. The article taps into one of the biggest nuances in this area of law: the use of force in the exercise of the right to self-determination, with a particular reference to Palestine. This is not least because the use of force has often been the means resorted to in historical attempts to achieve self-determination. Nonetheless, neither courts and tribunals nor academic scholars have seriously studied the issue. The question whether or not the use of force for self-determination is lawful is also particularly interesting from a legal perspective. It is one of the few phenomena of international life where two legal norms, both with a hierarchical superiority – namely the prohibition on the use of force and the right to self-determination – seem to collide... Click here to read the full article.

HKU Class of 2016 Graduates (Law PhD and SJD)

Congratulations to our 14 PhD and 1 SJD graduates who had their degrees conferred upon them at the 196th Congregation on 1 December 2016 at the University of Hong Kong.  The Congregation also saw the graduation of 461 other Faculty of Law students: 24 LLM, 21 LLM in Human Rights, 83 LLM in Corporate & Financial Law, 38 Master of Common Law, 4 LLM in Chinese Law, 27 LLM in Information Technology and Intellectual Property Law, 37 LLM in Arbitration and Dispute Resolution, 38 JD and 189 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Yue LUO, The Myth of Chinese Well-Known Marks: Formation, Debunking and Judicial Practice.  Supervisors: Alice Lee and Po Jen Yap

2. Dr Che Singh KOCHAR-GEORGE, A Disciplinary Model of the Asylum Process: Case Studies from the United Kingdom and Hong Kong.  Supervisors: Simon Young and Kelley Loper

3. Dr Henan HU, Re-examining Territorial Sovereignty in International Law: A New Perspective of the Settlement of the China Sea Disputes.  Supervisors: Hualing Fu and Tony Carty

4. Dr A-Jull LIM, Professional Failure and the Degradation of International Humanitarian Law: Narcissist Responses to the Post 9/11 So-called War on Terrorism.  Supervisor: Hualing Fu

5.  Dr Erick Onyango KOMOLO, Regime Fragmentation and Interaction: A Case Study of Kenya's Marine Fisheries Regulation.  Supervisor: Shahla Ali

6. Dr Huimiao ZHAO, Government Intervention in the Reorganization of Listed Companies in the context of Socialist Market Economy of China.  Supervisors: Xianchu Zhang and Emily Lee

7.  Dr Guy Samuel Charles LIPERT, Consumers and Banks in Dispute - From Litigation to Mediation: How Outlier Consumers and Banks in Hong Kong Engaged in Dispute Resolution in the Wake of GFC.  Supervisors: Shahla Ali and Katherine Lynch

8. Dr Uzma ASHRAF, The Need and Prospects for an Enforcement Mechanism in the Post-crisis Reconstruction of International Financial Regulatory Architecture.  Supervisor: Douglas Arner

9.  Dr Maria Adele CARRAI, A Genealogy of Sovereignty in Modern China, 1840-Today.  Supervisor: Albert Chen

10.  Dr Annelotte Jorien WALSH, A Children's Right Audit of the International Criminal Court.  Supervisor: Scott Veitch

11.  Dr Han ZHU, Social Movements and the Law in Contemporary China: A Comparative Approach.  Supervisor: Albert Chen

12.  Dr Man Lung CHENG, Emergency Powers and the Constitution: A Case Study of the Republic of China (1912-1991).  Supervisor: Albert Chen

13. Dr Anna Eirini BAKA, The Dialectic of the Cave: Self-determination, Constitution and the Phenomenology of Deprivation.  Supervisor: Tony Carty

14.  Dr Wenwen LU, Emergency Powers and Law in China.  Supervisors: Hualing Fu and Tony Carty

15.  Dr Sha LI, Fiction and Human Rights Discourse in China 1897-1927.  Supervisor: Marco Wan.

Benny Tai on What's Breeding Separatism in Hong Kong (HKEJ)

"What is breeding separatism in Hong Kong?"
Benny Tai
EJInsights
19 April 2016

In recent months, our city has seen the birth of several political organizations led by young people. Their political pledges would probably have been regarded as unimaginable 20 years ago — namely, self-determination or independence for Hong Kong. Even though these organizations are setting their sights on the period after 2047 and are seeking neither immediate self-determination nor independence, in the eyes of Beijing they have already crossed the line.

     The ideas of self-determination and independence are fundamentally different from each other. Self-determination often refers to a situation in which a particular group of people who share the same cultural or ethnic identity seek their constitutional right to determine their own governmental affairs and to make their own decisions on particular issues. What they want is autonomy rather than becoming an independent state, as opposed to those who are calling for full independence.

     Self-determination is often the result of a referendum, whereas independence may be achieved either by referendum or revolution. As far as Hong Kong is concerned, people who are in favor of self-determination might not necessarily agree with the pro-independence cause. Some of them might be against the idea of secession from China, especially more moderate voters, such as many in the middle class.

     Still seeing Hong Kong as part of the People’s Republic of China, they are dismayed at Beijing’s continued interference in Hong Kong’s affairs and its violation of the principle of “one country, two systems”, and so they are seeking a way to defend our autonomy, promised under the Basic Law, and trying to put things right. By contrast, pro-independence organizations are calling for Hong Kong’s secession from the mainland and becoming an independent city state like Singapore.

     Here I don’t intend to take a stand on either self-determination or independence, nor am I going to analyze the feasibility of these options. What I want to do is to find out the root cause for the sudden rise of the pro-self-determination and the pro-independence sentiment in Hong Kong.

     In fact, the rapid rise of such sentiment has its roots in the so-called “831 resolution” announced by the Standing Committee of the National People’s Congress on August 31, 2014, regarding the arrangements for the 2017 election for Hong Kong’s chief executive, and the failure of the subsequent Occupy Central movement... Click here to read the full article.

Michael Davis on Beijing's Reaction to Hong Kong Independence Talk (Backchat)

"Beijing’s reactions on HK Independence"

Backchat, RTHK Radio 3
12 April 2016
On Backchat, we will talk about Beijing's reactions towards Hong Kong Independence. Liaison office's new legal chief Wang Zhenmin suggested that people discussing independence in a large-scale setting were not only in breach of the Basic Law, but also the Crimes Ordinance and Societies Ordinance. What's your reaction to the statement? Is Beijing tightening its policy on Hong Kong? Is the common law and 'One Country Two Systems' under threats? Speakers: Lawrence Ma, Barrister, and Chairman, China-Australia Legal Exchange Foundation, Albert Chan, Legislator, People Power, Michael Davis, Professor, Faculty of Law, University of Hong Kong, Junius Ho, Practising Solicitor and Tuen Mun District Councillor.  Click here to listen to the programme.

HKU Law Faculty Members Comment on the Hong Kong National Party Controversy

"Young Hong Kong National Party radicals test limits of legal freedoms"

Tony Cheung
South China Morning Post
1 April 2016

Hong Kong National Party, the new kid on the radical block, is igniting debate on whether an extreme party that rejects the Basic Law and wants to turn Hong Kong into an independent republic can exist legally.

      While it is not the first group to advocate independence, it is at the extreme end of the localism movement as it has not only refused to recognise the Basic Law, the city’s mini-constitution, it has pledged to use “whatever means available” for Hong Kong to break away from the mainland.

     Can such a party exist in Hong Kong, a special administrative region of China, and can a Hong Kong citizen advocate independence without facing legal repercussions are among the questions that have sparked divided views.

     While some argued advocating independence without taking any action was part of freedom of speech, last night Beijing’s liaison office chief Zhang Xiaoming disagreed with such a stance. In an interview with Phoenix TV, he said the founding of the new party “went beyond the realm of the freedom of expression ... and must not be tolerated”...

      University of Hong Kong principal law lecturer Eric Cheung Tat-ming warned that the ordinance must not be interpreted without taking into account various other legislation, including the Basic Law and the Hong Kong Bill of Rights, that protect freedoms. “Those provisions in the Crimes Ordinance were outdated ... and their legality and constitutionality were in question,” Cheung told the Post.

      Former HKU law dean Johannes Chan Man-mun also said it was impossible to prosecute someone for advocating independence without action.

      Without further elaborating, HKU law professor Albert Chen Hung-yee said the provision about sedition “might not be applicable to the current situation”, but lawyer Maggie Chan Man-ki disagreed and said: “It is irresponsible to rule out the possibility of any legal liability ... because even the Bill of Rights says the exercise of [civic liberties] should not affect national security.”

       Former security minister Regina Ip Lau Suk-yee warned that while words did not constitute a crime, the party could be prosecuted when it organised activities to achieve its goals.

      While the Societies Ordinance is another law that could deal with acts that threaten national security, it is unlikely that the new party has applied to be registered as one, as most political groups are registered as companies.

      The party’s spokesman had said they had been advised by a third party that they might not be able to register under the Companies Registry. The registry told the Post it would not comment on individual cases.

      HKU law professor Simon Young told the Post that the party’s company registration depended on “whether ... seeking the independence of Hong Kong [peacefully] can be said to be not a lawful purpose”.

      He also said that under the Societies Ordinance, “it is hard to see how prohibiting the group would be necessary for national security ... [if] the party only seeks to discuss the possibility of independence and to achieve” it by peaceful means... Click here to read the full article.

"Independence stone dead in water"
The Standard
1 April 2016

A former Occupy Central activist has launched Hong Kong National Party to push for independence.

     However, that's akin to throwing a pebble in the water - after creating a few ripples, the stone sinks. Independence can never be a serious issue for people here.

     Obviously, some radicals are doing everything they can to anger Beijing ahead of the Legislative Council election in September, knowing that the communists are extraordinarily sensitive about the term "independence."

     However, Beijing's reaction has been surprisingly restrained. Instead, Xinhua News Agency spared just about 200 characters to denounce the move as harmful to national sovereignty and security...

      University of Hong Kong law professor Johannes Chan Man-mun said the SAR enjoys freedom of speech, and nobody should be prosecuted simply for speaking their minds - unless one crosses the line to commit illegal acts, including the use of force... Click here to read full article.

"Talk of independence could hasten passage of Article 23 security law, HKU law prof warns"

Hermina Wong

Hong Kong Free Press

31 March 2016

Talk of independence for Hong Kong could bring forward legislation to enact Article 23, the security law targeting subversion and sedition which was abandoned in the face of mass opposition in 2003, University of Hong Kong law Professor Eric Cheung Tat-ming said on Thursday. He added that he was worried that such discussions could touch a nerve in the central government.

     Regarding the newly-established, pro-independence Hong Kong National Party, Cheung said that their stance may not conform to the Constitution of China and the Basic Law, but the suggestion that it severely endangers the country is an exaggeration, according to a report by RTHK. Cheung said: “It’s the same as you suggesting that ‘defeat the Communist Party’ is against the Constitution of China, but this does not mean that people who voiced this kind of opinion have broken the law. The Basic Law and Bill of Rights protect freedom of speech.”... Click here to read the full article.

"Discussion of Hong Kong's independence do not violate the Basic Law"

RTHK Podcasts

31 March 2016

Law Professor Simon Young from the University of Hong Kong says simply discussing independence for Hong Kong would not violate the Basic Law. He says the police have powers to deal with people who undermine national security, public order or public safety. But he tells Jim Gould that if the independence-leaning Hong Kong National Party pursues its objectives through lawful means, it is quite questionable whether those powers could be used against it.  Click here to listen.

Michael Davis on the Survival of the Rule of Law in Hong Kong (SCMP)

"The rule of law needs more than lip service to survive in Hong Kong"

Michael Davis
South China Morning Post
17 March 2016

Hong Kong is increasingly locked in a perception gap that has come to colour nearly every aspect of political life.

     National People’s Congress chairman Zhang Dejiang (張德江 ) and other Chinese leaders have taken to lecturing Hong Kong on maintaining the rule of law. We are told “street politics could tarnish Hong Kong’s image”. The implication is that protests are the primary threat to the rule of law.

     The reasoning involves a mainland version of constitutionalism and the associated rule of law that sees it primarily as the people and government carrying out the policies and directives of the Communist Party. This theory explains why the Beijing leaders are often quoted as supporting the constitution and yet have tended to jail people who support a more functional constitutionalism.

     In Hong Kong, this central government commitment to the rule of law is guided by the principle that Hong Kong people accept without question Beijing’s interpretations and directives concerning the Basic Law. Hong Kong resistance was said in the white paper on Hong Kong to reflect a “confused and lopsided” view.

     Hong Kong’s people and its courts adhere to a different version of the rule of law. This version has long held that top officials are bound by the same rules that govern the public at large. Under such a standard, nobody is above the law and everyone is subject to the law applied in the ordinary manner. The central and Hong Kong governments taking excessive liberty with the meaning of the Basic Law does not meet that standard. Such an approach elevates their expedient preferences over the reasonable meaning of the commitments expressed in the words of the Basic Law... Click here to read the full article.  Separately, Professor Davis was also interviewed by Time for the article published on 16 March 2016, "Students at Hong Kong's Oldest University are Calling for the City's Independence" by Simon Lewis.

Winner of the Intersentia Prize 2014-2015 (Best PhD Thesis in Law)

Congratulations to Dr Zuo Changwu for winning the 2014-2015 Intersentia Prize for the Best PhD Thesis in Law.  Dr Zuo's thesis is entitled "An Analysis of Rules Governing Limited Liability Companies in China: Between Contracts and Regulation", and her supervisor was Professor Yu Guanghua.  The runner-up was Dr Kalana Senaratne for his thesis "A Critical Exploration of Internal Self-Determination under International Law, with Particular Reference to the Sri Lankan Conflict", supervised by Professor CL Lim.  The Intersentia Prize was established in 2012 to acknowledge, support and encourage outstanding PhD and SJD research.  The prize winner is chosen by an international prize committee on a yearly basis.  The value of the prize is GBP500, and both the winning and runner-up theses will be considered for publication by Intersentia.