Fordham Law

Martin Flaherty Cited in Major Decision in Hong Kong Court

June 16, 2011

Martin Flaherty, Leitner Family Professor of International Human Rights and Founding Co-Director of the Leitner Center for International Law and Justice, was cited in a major decision regarding the independence of Hong Kong's judiciary by the Court of Final Appeal, the highest court in Hong Kong.  

Justice Kemal Bokhary cites Flaherty's article "Aim Globally," 17 Constitutional Commentary 205 (2000), in his dissent in the case Democratic Republic of Congo v. FG Hemisphere Associates LLC. The case, which was heard in late March and decided on June 8, dealt with the issue of whether Congo should be granted sovereign immunity for the purposes of a civil suit. More importantly, this question triggered the larger issue of who should determine this question, Hong Kong’s Court of Final Appeal, or the Standing Committee of the National People’s Congress of the Peoples’ Republic of China in Beijing. 

Currently, Hong Kong operates under a Basic Law that guarantees it a high degree of autonomy under the principle of “One Country, Two Systems.” Under this system, Hong Kong retains the economic and common law legal systems that developed when it was a British colony, before it was returned to Chinese sovereignty in 1997. Integral to this arrangement is the role of the Hong Kong Court of Final Appeal, which is to be the court of last resort for legal matters arising in Hong Kong. Under Article 158 of the Basic Law, however, in certain instances matters that centrally affect China are to be referred to Beijing. Shortly after Hong Kong returned to China a substantial controversy arose when Beijing, without a reference from the Court, reinterpreted a provision of the Basic Law in a group of important cases deciding who had the right to live in Hong Kong. At the time, Fordham’s Crowley Program, together with the New York City Bar Association, went to Hong Kong and wrote a major report on the threat to judicial independence that existed at the time. 

Congo is the first case since then in which any issue has gone back up to Beijing, this time at the Court’s request. As such, the case has major implications for the autonomy of Hong Kong’s legal system. Justice Bokhary cited Professor Flaherty in support of the point that customary international law remains an important guide to deciding the substantive question of sovereign immunity, a decision that he insisted should rest with Hong Kong’s courts. 

In 2008, Professor Flaherty was cited by U.S. Supreme Court Justice Stephen Breyer in his dissent in Medellin v. Texas, 552 U.S. 491.