With James Irving (Law Department, LSE)
Series: Regional comparison: Taiwan and Hong Kong in Comparative Perspective
When international lawyers look at Hong Kong and Taiwan, Hong Kong is comparatively reassuring because its status is clear. Taiwan is far more troubling: careful consideration of the historical arguments and contemporary practice relating to its legal personality reveals much complexity, and ambiguity. Taiwan is a little like the West Bank, it is a territory that seems in important respects to test the limits of the standard model of status and statehood.
What makes all this particularly perplexing is that if one applies another filter the attributions would be reversed. Hong Kong is a territory whose residents have been passed from great power to great power, and even today its local institutions of representative self-government are seriously limited. Meanwhile Taiwan has had complete internal control, and meaningful external control, over its own destiny for over half a century. It is also now one of the strongest representative democracies in Asia. If the aim of law is justice, rather than mere clarity and order, then it should be Taiwan that reassures lawyers and Hong Kong that leaves them with a sense of unease.
The clashing perspectives outlined above are reflective of a strange schism between form and substance in international law. Most lawyers would fundamentally agree that law should assist the arc of history to bend toward justice. International lawyers, on the other hand, sometimes appear either unable to make the connection between their discipline and justice, or positively resist any such project (fearful of the potential charges of idealism, even Utopianism, that this may invite). The result is that doctrine and prescriptions that are tight in form threaten to replace, rather than supporting, that with substantive merit.
Fortunately international law has within its existing doctrine corrective and interstitial norms. The leading norm in this regard is self-determination, which has the potential to bring legal form and moral substance back into tighter relation with each other while not stunting the full and proper development of both Hong Kong and Taiwan.
The analysis proceeds in four parts:
1. A summary of the traditional legal approaches to the status and personality of Hong Kong and Taiwan.
2. A comparison of the political history and contemporary experience in both territories.
3. A discussion contrasting both positive and negative aspects of political and legal development in the two entities.
4. A proposal setting out an alternative legal approach to each case, demonstrating how the adaptive norm of self-determination could inform and reform the traditional analysis.
About the speaker
James Irving initially studied Science and Law (a combined programme) in Melbourne, Australia. After practising for a short period as an intellectual property lawyer James wrote a doctorate in international law at McGill University (Montreal). His primary research interest is in the idea, principle and right of self-determination as considered from legal, political and philosophical perspectives. Related questions include the theory and foundations of international law, the status of secession in international law, indigenous peoples’ rights, minority rights, autonomy regimes under international law, democratic governance in international law, decolonisation (and post-colonial development), feminist approaches to self-determination and the theory of nationalism. James has taught international law at the LSE since 2007 and founded an LLM course in self-determination in 2010. James is a CFA Charterholder, a Barrister and Solicitor of the Supreme Court of Victoria (Australia) and an Attorney and Counsellor-at-Law of the State of New York.