HONG KONG JOURNAL OF LAW AND PUBLIC AFFAIRS



ASIA'S FIRST STUDENT-EDITED LAW AND POLITICAL SCIENCE JOURNAL



HONG KONG JOURNAL OF LAW AND PUBLIC AFFAIRS



the hkjlpa: Official ACADEMIC JOURNAL of students belonging to the BSocSc (Govt&Laws) & LLB programme



The Hong Kong Journal of Law and Public Affairs (HKJLPA) is the first English language student-edited journal in law and political science in East Asia, published by the Government and Laws Committee, The University of Hong Kong (GLC) since 2019, in restoration of the student-edited Hong Kong University Law Journal (1926-1927), founded by Professor George Keeton (1902-1989), the first Lecturer of Political Science and Jurisprudence and Reader of Law and Politics at HKU, and later Dean of Laws and Vice Provost at University College London (UCL).


Supported by an International Editorial Advisory Board consisting of distinguished scholars, HKJLPA publishes articles in the English language from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration.


As the GLC’s flagship publication backed by the HKU Government and Laws Programme, HKJLPA is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed.



EDITORIAL BOARD





FOUNDING EDITOR IN CHIEF AND MANAGING EDITOR

Mr. Trevor T W Wan

BSocSc (Govt&Laws) & LLB IV



INTERNATIONAL EDITORIAL ADVISORY BOARD





Ms. Cora Chan

Deputy Head, Department of Law, The University of Hong Kong Associate Professor, Faculty of Law, The University of Hong Kong


Dr. Ngoc Son Bui

Assistant Professor, Faculty of Law, The Chinese University of Hong Kong


Dr. Anna Dziedzic

Associate Director, Centre for Comparative and Public Law, The University of Hong Kong

Global Academic Fellow, Faculty of Law, The University of Hong Kong


Professor Andrew Harding

Visiting Research Professor, Faculty of Law, National University of Singapore


Professor Zeid Ra'ad Al Hussein

Perry World House Professor of the Practice of Law and Human Rights, The University of Pennsylvania

United Nations High Commissioner for Human Rights (2014 - 2018)


Dr. Eric C. Ip

Director (Law), BSocSc (Govt&Laws) & LLB Programme

Associate Professor of Law, Faculty of Law, The University of Hong Kong


Professor Sungmoon Kim

Professor, Department of Public Policy, City University of Hong Kong

Associate Dean (Postgraduate studies), College of Liberal Arts and Social Sciences, City University of Hong Kong


Professor Eliza W. Y. Lee

Director (Politics and Public Administration), BSocSc (Govt&Laws) & LLB Programme

Professor, Department of Politics and Public Administration, The University of Hong Kong


Dr. Jaclyn L. Neo

Director, Centre for Asian Legal Studies, Faculty of Law, National University of Singapore

Associate Professor, Faculty of Law, National University of Singapore


Dr. Chengyi Peng

Associate Research Fellow, Institute of World Economics and Politics, Chinese Academy of Social Sciences


Dr. Dan W. Puchniak

Associate Professor, Faculty of Law, National University of Singapore



THIRD VOLUME 2020: CLIMATE CHANGE DISPLACEMENT AND THE INTERNATIONAL LAW



CLIMATE CHANGE DISPLACEMENT AND THE INTERNATIONAL LAW



THIRD VOLUME 2020





The Third Volume 2020 of the Hong Kong Journal of Law and Public Affairs, published in December 2020, is entitled “Climate Change Displacement and the International Law”.


The plight of environmental migrants is not novel to the international community. Obstacles faced while attempting to bring them within the purview of the 1951 Refugee Convention compels exploration of alternative legal and regulatory framework and drives litigation at both domestic and international levels. This Volume brings together experts and practitioners of climate change-induced displacement and surveys the propriety and inadequacies of existing international legal regimes. Several contributions also examine the prospects and implications of Teitiota v New Zealand – the first ruling delivered by the United Nations Human Rights Committee on environmental migrants in January 2020.


Apart from the symposium of articles, this Third Volume reproduces in full an interview conducted with Professor Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights (2014 – 2018) and currently Perry World House Professor of the Practice of Law and Human Rights at the University of Pennsylvania. Additionally, three authors of recently published monographs are interviewed on their work. The Volume concludes with a review of Government and Laws Committee's initiatives and publications of the First Semester of Academic Year 2020-2021.


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Foreword and Preface



FOREWORD



Ms. Stephanie Biedermann
Lecturer, Department of Law, The University of Hong Kong
Course Convenor, International protection of refugees and displaced persons


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PREFACE
Climate Change Displacement and the International Law



Editorial Board, Hong Kong Journal of Law and Public Affairs


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Part I
Articles Symposium



Climate Refugees – The Very Idea



Professor Phil Cole
Senior Lecturer in Politics and International Relations, The University of the West of England, Bristol


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Climate-induced Migration:Will Tribunals Save the Day?



Dr. Avidan Kent
Associate Professor in International Law, The University of East Anglia

Dr. Simon Behrman
Lecturer in Law, Royal Holloway, University of London


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The Limits of Algorithmic Solutions to Forced Migration Problems:
Human rights considerations for using automated decision systems for climate refugees



Ms. Kate Pundyk
Undergraduate, The Jackson Institute for Global Affairs, Yale University

Dr. Yvonne Su
Professor of Interdisciplinary Refugee and Diaspora Studies, York University


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Legislating recognition and protection of climate-displaced persons



Mr. Samuel Berhanu Woldemariam
PhD candidate, University of Newcastle, Australia


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UN Human Rights Committee on Climate Displacement: Legal Reflections



Dr. Stellina Jolly
Senior Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi


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Reflections on the contribution to the legal protection of climate migrants of the UN Human Rights Committee views adopted on Teitiota communication



Dr. Beatriz Felipe Pérez
Associate Researcher, Tarragona Centre for Environmental Law Studies (CEDAT), Rovira i Virgili University (Tarragona, Spain)


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The Gendered Impacts of Climate Displacement



Ms. Amali Tower
Founder and Executive Director, Climate Refugees


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The legal protection of climate refugees in East Africa



Mr. Victor Nyamori
Regional Refugee Coordinator, International Secretariat - East and Horn of Africa Office, Kenya, Amnesty International


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PART II
Conversations with Scholars and Practitioners



Global Human Rights: Trends and Affronts

In Conversation with Professor Zeid Ra’ad Al HusseinPerry House World Professor of Practice of Law and Human Rights, Carey Law School, University of PennsylvaniaUnited Nations High Commissioner for Human Rights (2014 - 2018)



Mr. Anfield C. H. Tam
Associate Editor, Hong Kong Journal of Law and Public Affairs


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PART III
AUTHOR INTERVIEWS



The UncountedPolitics of Data in Global Health (Cambridge University Press, 2020)



By Dr. Sara L.M. Davis
Graduate Institute of International and Development Studies, Geneva


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Constitution-Making under UN AuspicesFostering Dependency in Sovereign Lands (Oxford University Press, 2020)



By Dr. Vijayashri Sripati
Visiting Scholar, University of Toledo, Ohio, USA


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Digitising DemocracyOn Reinventing Democracy in the Digital Era - A Legal, Political and Psychological Perspective (Springer, 2020)



By Professor Volker Boehme-Neßler
Chair for Public Law, Legal Theory, European Law, Information and Telecommunication Law at Carl von Ossietzky University Oldenburg


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Ruling the Law: Legitimacy and Failure in Latin American Legal Systems (Cambridge University Press, 2019)



By Professor Jorge L. Esquirol
Professor of Law, Florida International University


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SECOND VOLUME 2020: MILITANT DEMOCRACY AND CONSTITUTIONALISM



MILITANT DEMOCRACY AND CONSTITUTIONALISM



SECOND VOLUME 2020





The Second Volume 2020 of the Hong Kong Journal of Law and Public Affairs, published in Fall 2020, is entitled “Militant Democracy and Constitutionalism”.


The end of Cold War has once endowed the world with optimism that the End of History has finally arrived. However, the rise of populist leaders with little regard to democratic norms, authoritarians which harness the constitutional toolbox to subvert democratic processes and an unprecedented invocation of emergency powers to combat the COVID-19 pandemic have all but blossomed into a siege against Constitutional Democracies on a global scale. This timely Volume, situated against the backdrop of global constitutional backsliding, features essays from leading political scientists and constitutional scholars. It discusses one of the possible countermeasures of democratic self-defence that has existed since 1937 – militant democracy and militant constitutionalism.


In addition, this Second Volume is graced with a case commentary on Miller (No.2), two interviews with leading constitutional lawyers Professor Andrew J. Harding and Dr. Tonio Borg, and two author interviews conducted with Professor Joel Colón-Ríos and Dr. Eric C. Ip on their new books. It ends, as usual, with a review of the Government and Laws Committee's initiatives and publications over the past academic year.


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Part I
Research Articles



Constitutionalism and Populism. Does militant democracy have a place?



Professor Graham Maddox
Emeritus Professor, Faculty of Humanities, Arts, Social Sciences and Education
University of New England


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Memory of Horror and Post-World War II Constitutionalism



Dr. Giuseppe Martinico
Associate Professor of Comparative Public Law, the Scuola Superiore Sant’Anna, Pisa


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Militant Democracy and Militant Constitutionalism – Origins, Substance and Future Significance in Constitutional Law and Constitutional Reality



Professor Markus Thiel
University Professor for Public Law with Special Reference to Police Law, Spokesman of Lecturers and Chairman of the Ethics Committee, The German Police University at Münster, Germany


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Decency and Defensive Democracy:
Applying George Orwell to the Brexit Imbroglio



Professor Richard Mullender
Professor of Law and Legal Theory, Newcastle Law School, Newcastle University, England


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Militant Constitutionalism: Safeguarding constitutional democracy in the case-law of the European Court of Human Rights



Dr. Jernej Letnar Černič
Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia)


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The Struggles of Democracy against the “New Terrorist” - the COVID-19 Pandemic: Separation of Powers - The Israeli Experience



Dr. Dalit Ken-Dror Feldman
Legal Supervisor of the Legal Clinic for Law, Technology and Cyber, Faculty of Law, University of Haifa;Post-Doctoral researcher, the IDC Herzliya and Tel-Aviv University

Professor Emanuel Gross
Professor Emeritus, Faculty of Law, University of Haifa


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Democracy, Democratic Self-Defence and Confucianism: A Critique of Li Chenyang's thesis



Ms. Dilys S. Y. Tam
Third-Year Bachelor of Social Sciences (Government and Laws) & Bachelor of Laws Candidate
The University of Hong Kong


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Militant Democracy and COVID-19: Protecting the Regime, Protecting Rights?



Dr. Max Steuer
Research Fellow, Department of Political Science, Comenius University in Bratislava


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Hungary, COVID-19 and Emergency Law: Democracy at Crossroads?



Mr. James W. C. Lee
Fourth-Year Bachelor of Social Sciences (Government and Laws) & Bachelor of Laws Candidate
The University of Hong Kong


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Part II
Case Commentary



The Meaning of Justiciability and the Nature of Judicial Review under Common Law Constitutionalism: Lessons from R (Miller) v Prime Minister [2019] UKSC 41



Mr. Thomas K. Y. Yeon
Judicial Assistant, Hong Kong Court of Final Appeal


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Part III
Conversations with Scholars and Practitioners



In Conversation with Professor Andrew J. Harding
Visiting Research Professor, Faculty of Law, National University of Singapore



Mr. Trevor T. W. Wan (with Professor Andrew J. Harding)'
Editor-in-Chief and Managing Editor, Hong Kong Journal of Law and Public Affairs


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In Conversation with Dr. Tonio Borg
Senior Lecturer, Faculty of Laws, University of Malta
Deputy Prime Minister, Malta (2004 - 2012)
European Commissioner for Health (2013 - 2014)



Mr. Trevor T. W. Wan
Editor-in-Chief and Managing Editor, Hong Kong Journal of Law and Public Affairs

Mr. Anfield C. H. Tam
Senior Editor, Hong Kong Journal of Law and Public Affairs


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Part IV
Author Interviews



Constituent Power and the Law (Oxford University Press, 2020)



By Professor Joel Colón-Ríos, Faculty of Law, Victoria University of Wellington


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Judging Regulators: The Political Economy of Anglo-American Administrative Law (Edward Elgar, 2020)



By Dr. Eric C. Ip,
Associate Professor and Director of the BSocSc (Govt&Laws) & LLB Programme, Faculty of Law, The University of Hong Kong


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INAUGURAL VOLUME: CONFUCIAN DEMOCRACY AND CONSTITUTIONALISM



CONFUCIAN DEMOCRACY AND CONSTITUTIONALISM



INAUGURAL VOLUME 2019





The Inaugural Volume of the Hong Kong Journal of Law and Public Affairs will be published in Fall 2019, in celebration of the 20th anniversary of the Government and Laws Programme at The University of Hong Kong.


The theme of the inaugural volume is “Confucian Democracy and Constitutionalism”. For decades, scholars and practitioners have been theorizing and debating possible models for Western political institutions such as representative democracy and constitutionalism to operate in East Asian countries in which the traditional Confucian culture is deeply embedded within. This interdisciplinary study features essays from leading political science, philosophy and legal scholars that engage these theories and debates through investigating multiple East Asian jurisdictions such as China, Vietnam and Korea to further illuminate our understanding on the Region’s political and constitutional future.


This inaugural volume also features a review of the GLC's initiatives over the past year, including various forums, visits to legal and political institutions and career events.


VIEW THE FULL INAUGURAL ISSUE HERE

Part I
Interdisciplinary Perspectives on Confucian Democracy and Constitutionalism



Chinese Democracy Isn't Inevitable
Can a political system be democratically legitimate without being democratic?



Professor Daniel A. Bell
Dean, School of Political Science and Public Administration, Shandong University
Professor, Tsinghua University


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A Comparison of Confucian and Liberal Constitutionalisms and Its Implications



Dr. Chengyi Peng
Associate Research Fellow, Institute of World Economics and Politics, Chinese Academy of Social Sciences


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Confucian Constitutionalism and Democracy and the Risk of Inventing Traditions



Dr. Maria Adele Carrai
Senior Researcher, Leuven Centre for Global Governance
Fellow, Harvard University Asia Centre


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The Battle for the Global Future
The Christians in America and the Confucians in China?



Professor Patrick Mendis
Distinguished Visiting Professor of Sino-American Relations, the Yenching Academy of Peking University


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Part II
Centre for Asian Legal Studies, National University of Singapore Faculty of Law Roundtable Discussion on Public Reason Confucianism



Introduction



Dr. Dan W. Puchniak
Associate Professor and Director, Centre for Asian Legal Studies, National University of Singapore Faculty of Law


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Kim’s Confucian Democracy in Context



Professor Bryan William Van Norden
Chair Professor, School of Philosophy, Wuhan University
Kwan Im Thong Hood Cho Temple Professor, Yale-NUS College
James Monroe Taylor Chair in Philosophy, Vassar College


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Comments on Part III: Civic Virtue



Dr. Hui-Chieh Loy
Associate Professor, National University of Singapore Department of Philosophy


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Pluralist Constitutionalism in Asia and Public Reason Confucianism



Dr. Jaclyn L. Neo
Associate Professor, National University of Singapore Faculty of Law


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Values and Constitutionalism: A Comment on Kim Sungmoon and The Case of The Daughters’ Rebellion



Professor Andrew Harding
Professor, National University of Singapore Faculty of Law


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The Practice of Public Reason Confucianism: Reply to Van Norden, Loy, Neo, and Harding



Professor Sungmoon Kim
Professor, City University of Hong Kong College of Liberal Arts and Social Sciences


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