State immunity: reassessing the boundaries of judicial autonomy in Hong Kong

Abstract

Ever since the establishment of “one country, two systems” in Hong Kong, there has been continuing controversy pertaining to the boundaries of judicial autonomy in Hong Kong vis-à-vis the People’s Republic of China. In particular, the definition of “act of state” and “foreign affair” – matters that are excluded from the jurisdiction of courts in Hong Kong – has been unclear. In FG Hemisphere v. Democratic Republic of Congo, a rare opportunity in Hong Kong’s history to explore this issue, Hong Kong’s Court of Final Appeal ruled by a 3:2 majority that the decision as to what the law on state immunity is constitutes a foreign affair, and the Chinese authorities’ determination on such an issue is an act of state. This article argues that the ruling has to some extent clarified the limits of judicial autonomy in Hong Kong, but failed to secure the maximum boundaries of autonomy permissible under its constitution, the Basic Law.