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Chapter 1 Hong Kong’s Status in International Law HONG฀KONG’S฀CLAIM฀TO฀‘INTERNATIONAL LEGAL฀PERSONALITY’1 Can฀it฀be฀substantiated? 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 of jurisdiction, and escalation in the volume of transnational interactions on the part of a variety of non-state actors. More specifically, commonly accepted criteria of statehood 2 — a permanent population; a defined territory; government; and capacity to enter into relations with other states’ — cannot be held to represent sufficient 3 or 1 International legal personality denotes the ability to act (exercise rights, bear duties) within the system of international law; entities possessing international legal personality are ‘subjects’ of international law. 2 See Art I, 1933 Montevideo Convention on Rights and Duties of States which is regarded as ‘customary international law’ (‘general practice accepted as law’). 3 Query, for example, whether the independent principality of Sealand (a steel-and-concrete second-world war anti-aircraft tower governed, since they liberated it in 1967 by Major/ 2 One฀Country,฀Two฀International฀Legal฀Personalities:฀The฀Case฀of฀Hong฀Kong even necessary 4 qualifications. Obviously, the less legalistic symbols of statehood, such as kings/presidents, armies, central banks, currency, or passports, offer no reliable yardsticks. 5 It is equally evident that UN [inconsistent] admission practices 6 or its current membership 7 are not particularly instructive in respect of the key distinguishing attributes of statehood. Nor would the international lawyer’s quest for indices of ‘international legal personality’ be advanced by adopting the ‘sovereignty’ test. As amply documented by theorists of widely diverging ideological persuasions, the position of the state as the central actor in the international community is being eroded, while ‘non-sovereign’ actors are increasingly assuming a prominent role in shaping the norms that order and maintain the international community. Analysts of contemporary global politics invariably note that the inefficacy of states to manage grave problems with ramifications beyond national frontiers (e.g. pollution), as well as formidable scientific and technological developments, have forced states to concede power to Prince Roy and Mrs/Princess Joan Bates) — which has its own constitution, flag, coat of arms, stamps, currency, and passport — is a ‘state’. At a more scholarly level, it has been argued that the method by which a ‘state’ comes into existence is of crucial importance, and that entities that owe their existence to a use of force by one state against another, originate in interference with the exercise of the right of self-determination, or are created in violation of the principle of non-racial discrimination are a ‘nullity’ under international law (even if they satisfy the four ‘traditional requirements’). See John Dugard, Recognition and the United Nations (Cambridge: Grotius Publications, 1987). 4 Note, for example, that Ukraine and Byelorussia were admitted as members of the UN — whose membership is confined to ‘states’ — for decades before they became independent states. 5 The European Community/Union, for example, has no king or army but its Ecu is a recognized, if unminted, currency; it also has its own diplomats, and holders of the standardized passports issued by its members enjoy ‘citizen’ status everywhere in the EC. The Community is also a member of several international organizations and a party to major international treaties. 6 Significant inconsistencies have been displayed particularly with regard to enforcement of requirements stipulated under Art 4 of the UN Charter:‘Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. ’ [emphasis added] 7 Members include Caribbean pinpoints such as Saint Christopher and Nevis or Saint Lucia, as well as other microentities like Vanuatu in the Pacific or San Marino in Europe — but not Taiwan (which has a population of 20 million and boasts ‘the world’s 25th highest per capita income; 20th largest gross national product; 15th biggest overseas trade volume; and...

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