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Treaty, Grant, Usage or Sufferance? Some Legal Aspects of the Status of Hong Kong

Published online by Cambridge University Press:  17 February 2009

Anthony Dicks
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Extract

The current controversy between Great Britain and China regarding the legal status of Hong Kong, having lain dormant for many years, was made explicit by a public exchange of statements between the governments of the two countries during and after the visit to Beijing of British Prime Minister Mrs Margaret Thatcher in September 1982.

Type
Hong Kong Briefing
Information
The China Quarterly , Volume 95 , September 1983 , pp. 427 - 455
Copyright
Copyright © The China Quarterly 1983

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References

1. Reuter, (Beijing), 24 September 1982, in South China Morning Post, 25 09 1982Google Scholar;

2. Ibid. On the previous day, 23 September 1982, Mr Zhao Ziyang had made a statement to the press, prior to his meeting with MrsThatcher, , to the effect that “of course, China must recover sovereignty over Hong Kong.” Asian Wall Street Journal, 24 09 1982Google Scholar;

3. The treaties to which Mrs Thatcher referred, the Treaty of Nanking (1842) and the Conventions of Peking (1860 and 1898) are referred to in detail below. It was the last which contained provisions granting a lease of the New Territories of Hong Kong for a term of 99 years.

4. Reuter, (Beijing), 24 September 1982, in South China Morning Post, 25 09 1982Google Scholar; She also said the treaties were “valid in international law”: Ta Kung Pao (English ed.), 30 September 1982.

5. A Hong Kong correspondent was given to understand that “well-placed Chinese sources” regarded to outcome of the talks, despite the friendly atmosphere, as “a step backwards” because “Mrs Thatcher was probably the first British statesman in the past decade to dispute China's sovereignty over Hong Kong.” Su, Victor in South China Morning Post, 25 08 1982Google Scholar;

6. South China Morning Post, 28 September 1982, in which a verbatim report of the press conference is reproduced.

7. Quoted in full in Ching, Frank: “China repudiates Thatcher's view on key treaties,” Asian Wall Street Journal, 1 10 1982Google Scholar; and in Ta Kung Pao (English ed.), 7 October 1982.

8. Although it is only in the course of the 20th century that China has developed her present legal position, the Chinese contention that the “unequal treaties have never been accepted by the Chinese people” seems to be essentially correct from an historical point of view. Although Chinese governments before 1949 did not take the position that the treaties were null and void, their revision had been called for on numerous occasions. It may bf doubted whether Chinese opinion at any time since 1842 has been reconciled to the idea that British rule in Hong Kong was permanent.

9. The most important were those associated with the Cultural Revolution and the disturbances to which this gave rise in Hong Kong and elsewhere, which have been disavowed by the present leadership in China. A careful reading of the official Chinese Government statements of the day suggests that if the contentious tone of much of the language is disregarded, they do not depart from the principles to which the Chinese Government now adheres in respect of Hong Kong.

10. Lipson, Leon: “Peaceful coexistence,” in Baade, Hans W. (ed.), The Soviet Impact on International Law (Dobbs Ferry, N.Y.: Oceana Publications, 1965), p. 27Google Scholar; Professor Lipson completed this observation on Soviet international law with the words “it does not therefore deserve a belligerent response,” a sentiment which appears equally appropriate in the present context.

11. 20 October 1898; text in Laws of Hong Kong (1964 ed.), Vol. 24, App. IV, pp. Jl–J2Google Scholar;

12. Winfat Enterprise (HK) Co. Ltd. v. Attorney General (High Court, Hong Kong, Misc. Proceedings No. 982 of 1982, judgment delivered 29 April 1983, not yet reported).

13. See O'Connell, D. P., International Law, 2nd ed. (London: Stevens & Sons, 1970), Vol. 1, pp. 283–85 and 403–405Google Scholar; for a succinct analysis of these concepts.

14. Used here to refer to the system which has evolved, at first mainly between the European powers, from the late 15th century onwards, originally based on a combination of elements including Roman and medieval European law, and the philosophical ideas of natural law and the nation state.

15. One important change for present purposes was the abandonment of the rule against “unequal’ or oppressive treaties, first enunciated by Jean Bodin in the 16th century and adopted by many of the classical jurists until the end of the 17th. Its revival in the 20th century, especially by Chinese jurists, is considered below.

16. For an analytical critique of Soviet theory, see Kelsen, H., The Communist Theory of Law (London: Stevens & Sons, 1955)Google Scholar; Chap. 9.

17. See, e.g. Tao, Ying, “A critique of bourgeois international law regarding the question of the sovereignty of the state,” Guoji wenti yanjiu (Journal of International Studies), Pt 3 (1960), p. 47Google Scholar; and Xin, Yang and Jian, Chen, “Expose and criticize the false theories of imperialism regarding the question of sovereignty of the state,” Zhengfa yanjiu (Studies in Politics and Law), Pt 4 (1964), p. 6Google Scholar; in which statements of Chinese leaders are used to illustrate the Chinese view that sovereignty of the state is the fundamental principle of international law.

18. Five such principles, the so-called Pancha Shila, were incorporated into the SinoIndtan Friendship Treaty of 1954. They were mutual respect for territorial integrity and sovereignty, mutual non-aggression, non-interference in the internal affairs of the other state, equality and mutual benefit, and peaceful co-existence itself. By the time of the Bandung Conference the list had grown to 10. For a careful analysis of the doctrine and its early Soviet history, seeLipson, , “Peaceful coexistence,” pp. 27–37Google Scholar; Note also Victor P. Karpov, “The Soviet concept of peaceful coexistence and its implications for international law,” ibid. pp. 14–26.

19. On the part of China, very little was done to meet this criticism. Although China has often incorporated references to some or all of the principles of peaceful co-existence in international.agreements with other countries, the paucity of analytical writing on international law since 1949, particularly in the period before and during the Cultural Revolution, has made it difficult to evaluate Chinese thinking with any real precision on a number of important legal issues, of which this is one. Fortunately the conditions which obstructed the growth of legal scholarship have now been largely removed: see Xiang, Huan, “Strive for the founding of the science of international law of new China,” foreword to China Society for International Law (ed.), Zhongguo guojifa niankan (Chinese Yearbook of International Law) (Beijing: China Foreign Translation Publishing Company, 1982), pp. 3–6Google Scholar;

20. See note 2, supra. Emphasis supplied.

21. See note 15, supra. See also Alexandrowicz, C. H., An Introduction to the History of the Law of Nations in the East Indies (Oxford: Clarendon Press, 1967)Google Scholar; Chap. VIII.

22. For details, see Chiu, Hungdah, “Comparison of the Nationalist and Communist Chinese views of unequal treaties,” in Cohen, J. A. (ed.), China's Practice of International Law: Some Case Studies (Cambridge, Mass.: Harvard University Press, 1972), pp. 239–67Google Scholar;

23. See Kozhevnikov, F. I.: “International treaties,” in Academy of Sciences of the U.S.S.R., Institute of Law (comp.), International Law, A Textbook for Use in Law Schools (Moscow: Foreign Languages Publishing House, n.d. but 1961), Chap. VI, pp. 248–49Google Scholar;

24. For the history of the doctrine and an analysis of some of the difficulties, see, e.g. Detter, I., “The problem of unequal treaties,” in International and Comparative Law Quarterly, No. 15 (1966), pp. 1069–1089CrossRefGoogle Scholar; where the debate in the Sixth Committee of the General Assembly is also fully discussed. There is a considerable literature on the subject.

25. Text in American Journal of International Law, No. 63 (1969), pp. 875–903CrossRefGoogle Scholar; The People's Republic of China was not represented at the diplomatic conferences which adopted the treaty and does not appear to have acceded to it formally. For the attitude of the Taiwan Government to this issue, see Chiu, Hungdah, “Comparison of the Nationalist and Communist Chinese views of unequal treaties,” p. 258Google Scholar;

26. Art. 52. If this provision had been in force in 1842 or 1860, two of the three treaties from which the British claim to sovereignty over Hong Kong is derived would have been null and void.

27. However, the Vienna Treaty Conference did also adopt a Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties, by which the Conference “Solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent.” The condemnation has moral rather than legal force.

28. Quoted in Cohen, J. A. and Chiu, Hungdah (eds.), People's China and International Law, A Documentary Study, 2 vols. (Princeton, N.J.: Princeton University Press, 1974), Vol. 1, p. 384Google Scholar; The Chinese request was successful but it must be doubted whether the claim that the whole question rests exclusively within China's jurisdiction was accepted by other member states, many of which have treaty relations with Britain in respect of Hong Kong, as well as other interests in the territory.

29. See note 7, supra.

30. A slightly stronger formulation of the position in relation to Macao which amounts to an assertion that that territory is returnable on demand, was made in an editorial on the front page of the Renmin ribao (People's Daily), 26 October 1955, an English translation of which was released by the Xinhua News Agency on the same date: “… Macao is Chinese territory. The Chinese people have never forgotten Macao, nor have they forgotten that they have the right to demand the recovery of this territory from the hands of Portugal.… The fact that Macao has not yet been returned to China does not mean that the Chinese people can tolerate long continuation of occupation of Macao.” Quoted in Cohen, and Chiu, , People's China and International Law, Vol. 1, p. 376Google Scholar; The position of Macao is now different in certain important respects from that of Hong Kong, since under Portuguese law the territory is a part of China, and thus Portugal exercises extraterritorial powers. There is, however, no reason to suppose that the Chinese do not consider that they have an equivalent “right to demand the return” of Hong Kong.

31. See note 2, supra.

32. See O'Connell, , International Law, Vol. 1Google Scholar; Chap. 10, for an extensive discussion under the title “Titular, residual and distributed sovereignty.”

33. The concept of divisibility of sovereignty is criticized severely in both of the articles referred to in note 17, supra.

34. The courts are themselves subject to the appellate jurisdiction of the Judicial Committee of the Privy Council, which sits in London.

35. Orders in council are made by the Queen in Council on the advice of responsible ministers. They may be made either by the exercise of powers conferred on the Crown by act of Parliament, or by the exercise of the Royal prerogative. It may be noted that in relation to dependent territories such as Hong Kong, the scope within which the Royal prerogative may be exercised is much wider than in the domestic law of the United Kingdom itself, where it is largely confined to matters of foreign affairs.

36. 28 & 29 Viet. c. 63. It should be noted that the legislature of Hong Kong is not a “representative legislature” within the meaning of s. 1 of the Act, since none of the members of the Legislative Council is elected.

37. For the text of the current Hong Kong Letters Patent, 1917–76, see Laws of Hong Kong (1981 ed.), Vol. 22, App. I, pp. C1–C8Google Scholar; An extract from the Letters Patent 1843 is printed in Vol. 24, App. IV, p. Dl.

38. For the text of the Hong Kong Royal Instructions, 1917–80, see ibid. Vol. 22, App. I, pp. D1–D12.

39. Macleod v. Attorney-General for New South Wales [1891] A.C. 455.

40. Thus, advisers who assist the Governor in the conduct of foreign affairs (including those involving China) are appointed directly from the British diplomatic service and maintain direct and constant communications with the Foreign Office in London.

41. Treaties, both bilateral and multilateral, to which Britain is a party usually contain provisions specifying the extent to which they apply or may be applied to dependent territories, which are usually enumerated by name for this purpose. See also note 28, supra.

42. McNair, Lord: The Law of Treaties, 2nd ed. (Oxford: Clarendon Press, 1961), p. 119Google Scholar; footnote 3. For some further details, see Dicks, A. R.: “The law and practice of Hong Kong and foreign investment“ in Shepherd, V. (ed.), International Law Problems in Asia (Hong Kong: Hong Kong University Press, 1969), pp. 155–56Google Scholar;

43. The texts of these agreements are not published by either the British or the Chinese side. Among the best known are those which relate to the supply of water.

44. See Dicks, A. R., “The position of Hong Kong and Macao in recent Chinese legislation,” in Hong Kong Law Journal, No. 4 (1974), pp. 151–61Google Scholarpassim, in which legislation of an equivocal character is also discussed. It should be noted that in a revised version of the shipping legislation referred to, which was promulgated in 1979, after the end of the Cultural Revolution, the equivocal provisions were preserved unaltered.

45. Laws of Hong Kong (1981 ed.), Chap. 32.

46. See, e.g. Art. 8 of the Interim Regulations on Foreign Exchange Control of the People's Republic of China (promulgated 18 December 1980). Both English and Chinese texts will be found in China's Foreign Economic Legislation (Beijing: Foreign Languages Press, 1982), Vol. 1, pp. 118–38Google Scholar;

47. This is one of a number of instances in which the Chinese claim that Hong Kong now forms part of Chinese territory may affect the interests of third states. The question whether treaties made by the People's Republic can be construed as extending to Hong Kong is largely unexplored but of great potential importance to foreign investors in Hong Kong, e.g. Swedish investors under the treaty of 29 March 1982 or those of the United States, if negotiations currently under way result in an investment protection agreement.

48. Adopted by the National People's Congress, 10 September 1980. For a further less ambiguous instance, see Dicks, “The position of Hong Kong and Macao in recent Chinese legislation.” Note that the extraterritorial application of Chinese criminal law, including now the Criminal Code of 1979, does not fall within this category, since it applies equally to foreign countries: ibid.

49. The important question of nationality, although closely related to the exercise of territorial sovereignty, is beyond the scope of this article.

50. Ratifications were exchanged at Hong Kong on 26 June 1843. The full texts in both English and Chinese will be found in Treaties, Conventions, &c., between China and Foreign States: China, the Maritime Customs, III – Miscellaneous Series, No. 30, 2 vols. 2nd ed., (Shanghai: Inspectorate General of Customs, 1917)Google Scholar(hereafter cited as Customs), Vol. 1, pp. 351–56. The English text is also printed in Hertslet's China Treaties, 2 vols. 3rd ed. (London: H.M. Stationery Office, 1908), Vol. 1, pp. 7–12Google Scholar;

51. For the historical background to the Treaty of Nanking, including the unratified Convention of Chuenpi under which British forces had earlier taken possession of Hong Kong, see Fairbank, J. K. (ed.), The Cambridge History of China Volume 10: Late Ch'ing, 1800–1911, Pt 1 (Cambridge: Cambridge University Press, 1978)CrossRefGoogle Scholar; Chaps. 4 and 5. The fourth ingredient, freedom of activity for Christian missionaries, was secured by treaties with France.

52. From Customs, Vol. 1, p. 352. For a comment on the Chinese text see below.

53. For the distinctions between “ceded” and other colonies, which have important implications from the point of view of the municipal constitutional law of the United Kingdom, see Roberts-Wray, K., Commonwealth and Colonial Law (London: Stevens & Sons, 1968), pp. 98–108Google Scholar;

54. For the circumstances in which the city came to be occupied, see Fairbank, , The Cambridge History of China, Vol. 10, Pt 1, pp. 243–61Google Scholar;

55. Text in Laws of Hong Kong, 1964 ed., Vol. 24, App. IV, p. FlGoogle Scholar;

56. Ratified 28 October 1860. English and Chinese texts in Customs, Vol. 1, pp. 429–34. English text in Hertslet's China Treaties, 3rd ed., Vol. 1, pp. 48–52.

57. The lease did not wholly disappear from view, however, for it is referred to in the text of the Convention, in order to define, by reference to the map which was annexed to it, the area ceded. The English text of Art. VI of the Convention of Peking reads as follows: With a view to the maintenance of law and order in and about the harbour of Hongkong, His Imperial Majesty the Emperor of China agrees to cede to Her Majesty the Queen of Great Britain and Ireland, and to Her heirs and successors, to have and to hold, as a dependency of Her Britannic Majesty's Colony of Hongkong, that portion of the township of Cowloon, in the Province of Kwangtung, of which a lease was granted in perpetuity to Harry Smith Parkes, Esquire, Companion of the Bath, a member of the Allied Commission at Canton, on behalf of Her Britannic Majesty's Government, by Lan Tsung Kwang, Governor General of the Two Kwang.

It is further declared that the lease in question is hereby cancelled; that the claims of any Chinese to any property on the said portion of Cowloon shall be duly investigated by a Mixed Commission of British and Chinese Officers; and that compensation shall be awarded by the British Government to any Chinese whose claims shall be by the said Commission established, should his removal be deemed necessary by the British Government (Customs, Vol. 1, p. 433.)

58. Text in Laws of Hong Kong, 1964 ed., Vol. 24, App. VI, pp. H1–H2Google Scholar;

59. It is defined as “Kowloon” by s. 3 of the Interpretation and General Clauses Ordinance, Chap. 1, Laws of Hong Kong, 1975 ed., Vol. 1Google Scholar;

60. This was Henry Wheaton's Elements of International Law, transl. by the missionary W. A. P. Martin under the title Wanguo gongfa, Fairbank, , The Cambridge History of China, Vol. 10, Pt. 1, p. 581Google Scholar;

61. For a comprehensive account of the traditional Chinese view see Fairbank, J. K. (ed.), The Chinese World Order: Traditional China's Foreign Relations (Cambridge, Mass.: Harvard University Press, 1968)CrossRefGoogle Scholar; The Chinese ideology was far more rigid than that which prevailed in Western and Southern Asia: Alexandrowicz, , An Introduction to the History of the Law of Nations in the East Indies, pp. 15–17Google Scholar;

62. Literally, “to cut-off and yield.” Interestingly, this term is used without qualification in a commentary on the unequal treaties to describe the effect of Art. Ill of the Treaty of Nanking: see Yun, Gu (comp.), Zhongguo jindaishi shangde bupingdeng tiaoyue (Unequal Treaties in the Recent History of China) (Hong Kong: Xianggang ChaoyangChubanshe, 1975), pp. 6–7Google Scholar;

63. Literally, “to yield and give,” “to yield up,” “to yield and grant.”

64. E.g. in Art. V of the Agreement Modifying the Burma Frontier and Trade Convention of 1 March 1894 (signed at Beijing, 4 February 1897). Chinese text in Customs, Vol. l, p. 535.

65. Cf. rangwei, “to resign sovereign authority,” “to abdicate.”

66. Geiyu, which can also be translated as “given“: in the context, “granted” seems more accurate.

67. Taken from the Chinese text in Customs, Vol. 1, p. 352, which is said to have been extracted from the official records preserved in the Tsungli yamen (Zongli yamen), the imperial foreign ministry. The Chinese text in the Chouban yiwu shimo (Complete Account of the Management of Barbarian Affairs), which contains the texts submitted to the Emperor, omits the words “to possess,” obviously in order to conceal the true character of the agreement. The British royal title is also toned down in various ways. For this text see Fairbank, J. K. (comp.), Ch'ing Documents: An Introductory Syllabus, 2nd ed. (Cambridge, Mass.: Center for East Asian Studies, 1959), Vol. 2Google Scholar; Doc. 9. It should be said that the present translation is intended to be illustrative rather than authoritative; a full textual analysis would be beyond the scope of this article.

68. In the land law of traditional China the concept of irrevocable alienation was well known and was expressed by a particular form of words in the deed of sale, which always contained the word jue, to “cut” or “sever” (cf. “gerang,” the late 19th-century equivalent of “cession” referred to in note 62, supra). In the absence of this expression in a deed of sale, the sale was deemed to be a revocable one of the kind known as dian, a form of security for money lent which resembled a Welsh mortgage. The rule was a statutory one introduced by the Qianlong Emperor in 1753.

69. As, for example, in yongtian, “perpetual lease,” a term of traditional Chinese land law.

70. Instead of “geiyu“ or “granted” in the latter, the Emperor “ordered” the territory “to be handed over” or “to be transferred” (fuyu) to Britain to become part of Hong Kong.

71. Alexandrowicz, , An Introduction to the History of the Law of Nations in the East Indies, pp. 162–64 and 178–79Google Scholar;

72. Buping tiaoyue (Unequal Treaties) (place of publication not stated, Xiangdao Zhoubao Press, 1925), p. 23Google Scholar; The wording referable to Hong Kong is close to, though not identical with, that of the Treaty of Nanking. This appears to be the earliest statement of the communist view of the legal status of Hong Kong. It was published shortly after publication of a Communist Party statement, following the “May 30th Incident” of 1925, which called for support for the Nationalist campaign to abrogate the treaties. Without going so far as to say that the treaties were void, the book takes a more radical position than that of the Nationalists by calling in question British sovereignty in Hong Kong.

73. Ratifications were exchanged in London, 6 August 1898.

74. The title and the final clauses governing signature, date and ratification have been omitted.

75. English and Chinese texts in Customs, Vol. 1, pp. 539–40. English text (with the addition of the captions, which are not part of the original text) in Hertslet's China Treaties, 3rd ed., Vol. 1, pp. 120–22, where the original map annexed to the Convention is reproduced; also in MacMurray, J. V. A. (ed.), Treaties and Agreements with and Concerning China, 1894–1919, 2 vols. (New York, Oxford University Press, 1921)Google Scholar(hereafter MacMurray), Vol. 1, pp. 130–31 (also with a reproduction of the original map); also in Laws of Hong Kong, 1964 ed., Vol. 24, App. IV, pp. 11–12Google Scholar;

76. On 6 March 1898 China ceded to Germany on lease, provisionally for 99 years the territory of Kiao-chau (in the environs of Qingdao, Shandong province) and China, “… in order to avoid the possibility of conflicts,…” agreed to “… abstain from exercising rights of sovereignty during the term of the lease, and leaves the exercise of the same to Germany…“ On 27 March 1898 Russia was granted Port Arthur (Lushun) and Dalian (in Russian Dalny and in Japanese Dairen) and the surrounding territory of the Liaodong Peninsula for 25 years, with the specific term that “… this act of lease in no way violates the sovereign rights of H.M. the Emperor of China to the above-mentioned territory.…“ The Russian interest in this lease was transferred, with the consent of China, to Japan by the Treaty of Portsmouth in 1905, and by an Exchange of Notes dated 25 May 1915 between China and Japan the term was extended to 1997 as part of the settlement of the “21 Demands” made by Japan in January 1915. On 27 May 1898 France obtained the lease of Guangzhouwan for 99 years with the understanding that the sovereign rights of China were not thereby affected, but with a provision that it should be governed and administered by France alone. Britain also obtained a lease of Weihaiwei in Shandong (Convention of Peking, 1 July 1898) which was in essentially similar terms to the Kowloon lease (including a jurisdiction clause in respect of the walled city of Weihaiwei) except that its duration was expressed as “… for so long a period as Port Arthur shall remain in the occupation of Russia.” Texts of all the instruments in question will be found in Customs and MacMurray.

77. The New Territories Lease is the subject of a recent detailed study by Wesley-Smith, Peter, Unequal Treaty 1898–1997: China, Great Britain and Hong Kong's New Territories (Hong Kong: Oxford University Press, 1980)Google Scholar; in which negotiations leading up to the Convention of 1898, as well as the subsequent legal and administrative history are very fully considered in the light of the available sources, especially official British archives (Chinese sources are not referred to). Although the present writer does not agree with all his conclusions, Dr Wesley-Smith's scholarship has been of great assistance in the preparation of this article.

78. This was the view of the British courts in China: see Macdonald v. Anderson (H.B.M. Supreme Court for China, Tianjin, 16 01 1904)Google Scholar; See Keeton, G. W., The Development of Extraterritoriality in China, 2vols. (London: Longmans Green, 1928), Vol. 1, pp. 618–21Google Scholar;

79. Interpretation of one of a system of treaties in this way was adopted by the Permanent Court of International Justice in the Wimbledon case, P.C.I.J., Ser. A, No. 1, p. 30 (1923) and by the International Court of Justice in the Rights of U.S. Nationals in Morocco case, I.C.J.Rep. (1952), p. 189. In the S. W. Africa cases, I.C.J.Rep. (1962), p. 5, the Court said it must have regard to the situation of the parties at the time the treaty was made to ascertain their intentions.

80. The terms of Art. II of the Agreement of 4 February 1897 modifying the Burma Frontier and Trade Convention of 1 March 1894 should be noted in this connection. A tract of land south of the Namwan River was recognized as Chinese territory, but ‘In the whole of this area China shall not exercise any jurisdiction or authority whatever. The administration and control will be entirely conducted by the British Government, who will hold it on a perpetual lease from China, paying a rent for it, the amount of which shall be fixed hereafter.” English and Chinese text in Customs, Vol. 1, p. 532; English text in MacMurray, Vol. I, p. 94. The rent was fixed at 1,000 rupees per annum: Syatauw, J. J. G., Some Newly Established Asian States and the Development of International Law (The Hague: Martinus Nijhoff, 1961), p. 124Google Scholar;

81. Wesley-Smith, , Unequal Treaty 1898–1997, gives numerous illustrations: see in particular the view of Sir Gerald Fitzmaurice (as he later became) at pages 182–83Google Scholar;

82. Wesley-Smith, , Unequal Treaty 1898–1997, pp. 88–89Google Scholar;

83. Commonly named the “New Territories Order in Council“; text in Laws of Hong Kong (1964 ed.), Vol. 24, App. IV, pp. J1–J2Google Scholar; Wesley-Smith, , Unequal Treaty 1898–1997, pp. 194–95Google Scholar;

84. Ibid. Art. 3; entered into effect pursuant to proclamation dated 5 April 1899. By the Hong Kong Extension Ordinance (No. 10 of 1899) the New Territories were exempted from the operation of a number of Hong Kong laws; the position has been modified from time to time.

85. The city contained the yamen (administrative seat) of a sub-magistrate under the authority of the xian (county) magistrate of Xinan xian. The Chinese negotiators showed the greatest reluctance to concede jurisdiction within the ancient walled cities in both the Kowloon and Weihaiwei leases, and in both instances they succeeded in obtaining reservations. The reason for their attitude was the special symbolic importance attached to an official yamen under the imperial regime, a point apparently not mentioned in the British official correspondence quoted by Wesley-Smith.

86. The name has survived the destruction of the walls during the Japanese occupation in the Second World War.

87. Wesley-Smith, , Unequal Treaty 1898–1997, pp. 71–73Google Scholar; For an account of more recent protests, see ibid. pp. 124–29. The text of a protest made in 1963 is printed in Cohen, and Chiu, , People's China and International Law, Vol. 1, pp. 377–79Google Scholar;

88. Wesley-Smith, , Unequal Treaty 1898–1997, pp. 168–69Google Scholar; Note the wording of the “Walled City” clause, supra.

89. Text in Laws of Hong Kong (1964 ed.), Vol. 24, App. IV, pp. L1–L2Google Scholar; and in Wesley-Smith, , Unequal Treaty 1898–1997, pp. 196–97Google Scholar;

90. For an account of its history, a description of the City in 1972 and an account of improvements since the thaw in relations between China and Britain at about that time, see Wesley-Smith, ibid. pp. 121–35.

91. Re Wong Hon, [1959] H.K.L.R. 601 (Full Court).

92. A substantially similar provision is now contained in s. 8 of the New Territories Ordinance, Chap. 97, Laws of Hong Kong (1964 ed.), Vol. 5Google Scholar; The statement in the text, while thought in essence to be accurate, omits the complicated history of the legislation, as to which see note 95, infra.

93. See note 12, supra.

94. See note 83, supra.

95. The brief analysis in the text conceals the complexity of issues dealt with in the judgment, which also sets out the whole history of the legislation in detail.

96. It was strenuously opposed on this ground by Mr T. E. Whitehead, a member of the Legislative Council, at the time of its enactment.

97. In traditional Chinese law there was a doctrine that all land belonged ultimately to the Emperor, rather as in English law even the freeholder is strictly speaking a tenant of the Queen. The New Territories legislation thus had the additional effect of expropriating the “ownership” of the Emperor, a further British assertion of sovereignty. This, however, did not offend any express provision of the lease.

98. This may help to explain the frequently expressed sense of grievance felt by the inhabitants of the New Territories on the land issue: Wesley-Smith, , Unequal Treaty 1898–1997, pp. 172–74Google Scholar;

99. The protests against British activity in the Walled City may at first sight appear to be an affirmation of the terms of the Convention of 1898. However, the Chinese view, if it were articulated, would presumably be that since the Convention, even if valid, stopped short of transferring jurisdiction over the Walled City, it was a territory to which Britain could not even claim a colourable title.

100. Art. VII of the Commercial Treaty signed at Shanghai, 5 September 1902. (Customs, Vol. 1, pp. 543–68; MacMurray, Vol. 1, pp. 342–56; Hertslef's China Treaties, Vol. 1, pp. 171–88.) This provision was limited to extraterritorial rights and hat no direct bearing on the position of Hong Kong.

101. Chiu, Hungdah, “Comparison of the Nationalist and Communist Chinese views of unequal treaties,” p. 247Google Scholar; See also note 72, supra.

102. These treaties appear to have been considered themselves unequal by the Government of the People's Republic, presumably because they were given in exchange for guarantees of foreign interests: seeChiu, Cohen and, People's China and International Law, Vol. 2, pp. 1054–1056Google Scholar;

103. Exchange of Notes giving effect to the Customs Agreement between the Chinese Maritime Customs and the Government of Hong Kong, 12 January 1948, reproduced with annexes in Treaties between the Republic of China and Foreign States (1927–1961) (Taibei: Ministry of Foreign Affairs, 1963), pp. 634–47Google Scholar;

104. A reference to the leased territory.

105. Kai-shek, Chiang, China's Destiny, English translation of Chinese edition of 1943 by Chung-hui, Wang (New York: Macmillan, 1947), p. 143Google Scholar; quoted in Chiu, Hungdah, “Comparison of the Nationalist and Communist Chinese views of unequal treaties,” p. 252Google Scholar;

106. Hungdah Chiu, ibid. pp. 252–54. That it was regarded as a matter of right is confirmed by an account of unsuccessful negotiations in 1943, in which President Roosevelt agreed to suggest that Britain should unilaterally agree to surrender Hong Kong and the New Territories to China, which would then establish a free port for the benefit of British interests. The Chinese agreed, but only on the basis that the free port scheme should not be a condition of retrocession. Britain, however, was not agreeable. Ibid. pp. 253–54, footnote 60.

107. Quoted inTung, L., China and Some Phases of International Law (London and New York: Oxford University Press, 1940), p. 33Google Scholar;

108. See Mrs Thatcher's statement, note 6, supra.

109. Lauterpacht, H. (ed.), Oppenheim's International Law, 8th ed. (London: Longmans Green, 1955), Vol. 1, pp. 875, 938Google Scholar;

110. Where territory is ceded to a foreign state in peacetime, parliamentary sanction has been obtained, as in the case of the cession of Heligoland to the German Empire in 1890, but it is probably not strictly necessary: Halsbury's, Laws of England, 4th ed. (London: Butterworths, 1974), Vol. 8, pp. 629–30Google Scholar; para. 986, footnote 3.

111. Although chiefly remembered (especially in China) in the context of western imperialism the history of such jurisdiction is much older. In the Turkish empire, European merchants lived in communities under their own laws long before the European states were in a position to impose such privileges by force. See Alexandrowicz, , An Introduction to the History of the Law of Nations in the East Indies, pp. 92–124Google Scholar; where the antiquity of such arrangements in Asia, which long pre-dated the arrival of the Europeans, is discussed. For the privileges of the Hanseatic and Venetian merchants in London (terminated for economic reasons in the late 16th century) seeHoldsworth, , History of English Law (London: Methuen, 1971), Vol. IV, pp. 332–33Google Scholar and Vol. V, p. 92.

112. The Act requires the order in council to be laid before Parliament. 113.

113. Casdagli v. Casdagli, [1919] A.C. 145, p. 156. He also held that it was completely incorrect to attribute to foreign residents in Egypt a so-called “extraterritorial” status of the kind enjoyed by ambassadors, a view with which the other law lords agreed.

114. In particular, Art. 31 of the Constitution of the People's Republic of China, adopted on 4 December 1982, reads as follows: “The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions.”