The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Rejoinder to Kevin Tan

Abstract

I appreciate Professor Tan�s willingness to assume the role of a discussant and endeavour to initiate the process of a collective exploration of the issues addressed in my article. It must be stated at the outset that I find his arguments not compelling, am disappointed that he has not approached the task more carefully and wish that he had ventured deeper into methodological and theoretical territory. However, the two-way flow of ideas for which the EJIL provides a fertile platform yields intellectual benefits even when it is uneven and incomplete. Tan�s response is marred by inaccurate assertions and questionable observations. He portrays me as a strong advocate of regime theory, an assessment that bears no relationship to reality. I have indeed written extensively on international legal regimes, primarily in the environmental and economic domains. Yet, I invariably examine the concept cautiously and tentatively. I highlight its flaws in considerable detail and employ it subject to several reservations. I believe that it is not superior, but also not inferior, to other analytical constructs relied upon by international legal theorists. I have a mild preference for rationalist (a category to which regime theory belongs) formulations over normative ones but, given the limitations of all the schools of thought in the field, I consistently advocate a multi-dimensional inquiry, incorporating different perspectives. My current EJIL article is no exception. It provides no endorsement of regime theory. Quite the contrary, it contends that institutionalism/neo-institutionalism (and, by implication, strictly speaking, regime theory) cannot account adequately for the formation of the Sino-British legal regime for Hong Kong.