国际法院前院长史久镛在“亚洲的共同未来” 国际法研讨会上的发言

‍ ‍ ‍ ‍ ‍ ‍ ‍ Ladies and Gentlemen,

July 1st of this year, i.e. just a few days ago, Hong Kong had just celebrated the 20th anniversary of China’s recovery and resumption of exercise of sovereignty over Hong Kong and establishment and functioning of the Hong Kong Special Administrative Region (hereafter, HKSAR). As is well known, HKSAR enjoys a high degree of autonomy in the form of “ One State, Two Systems”, which is functioning successfully. On this memorable occasion, it may not be inappropriate for me to speak on the question of the evolution and essential features of “One State, Two Systems” of autonomy of HKSAR as well as its enrichment to the normal concept of autonomy in international law.

Here, I only need to simply mention that by Treaties of 1842 and 1860 imposed on China by the British as aftermath of China’s defeat in the notorious two opium wars waged by the British, Hong Kong Island and Kowloon were supposed to be ceded to the British and by Treaty of 1898 imposed on China, Kowloon Peninsula (New Territory named by the British) was leased to the British for 99 years, terminating in 1997.

Now, given the concept of intertemporal law, there is no rule of international law on invalidity and illegality of unequal treaties imposed on by big powers. Precisely for that, the Covenant of League of Nations created the mandate system for colonies, and the Charter of the United Nations includes Chapter XI on Declaration regarding Non-Self-Governing Territories and Chapter XII on International Trusteeship system.

Since China’s Republican Revolution of 1911 overthrowing the corrupt Ching Dynasty, China’s former successive governments had made attempts to abolish unequal treaties imposed by various big powers, but to no avail. In fact, during the 2nd world war, between 1942 and 1943, and even after the war, the then Nationalist Government of China demanded for the return of Hong Kong area to China by the United Kingdom, but the demand was categorically rejected by the British in the talks. To my knowledge, the then British Prime Minister even arrogantly said that he would never see the dismemberment of the British Empire.

In 1949, after the overthrow of the Nationalist Government, the new Government led by the Chinese Communist Party adopted a new policy towards treaties in force during the old regime, declaring that the Government “ shall examine those treaties and agreement and shall recognize, abrogate, revise or renegotiate them according to their respective contents”.

No doubt, to the Chinese Government, the three treaties on the Hong Kong area are unequal in nature and are simply invalid. To China, Hong Kong was not a British colony, but under British occupation in consequence of British aggression. Thus, upon the restoration of China’s right of representation in the United Nations and ouster of so-called Nationalist delegation, in 1971, at the instance of the Chinese Government, the U.N. Special Committee on decolonization adopted on 15 June 1972, a resolution recommending the deletion of Hong Kong and Macao from its list of colonies which was approved by the 27th General Assembly. This Resolution of the UN General Assembly is, in a sense, recognition of China’s position on the status of Hong Kong and the nature of the three Treaties.

Nonetheless, despite the illegality of British occupation, China was not in a hurry to recover Hong Kong, but rather took a realistic attitude towards British administration of the region. This position of the Chinese Government is fully justified by the Government’s heavy burden of domestic economic and social reforms necessitated after the overthrow of the old Nationalist regime, as well as China’s strategic considerations of China’s overall foreign policy in the context of the then existing pattern of international power relationships. In particular, in the wake of China’s engagement in the Korean War and economic embargo imposed by the U.S.A, Hong Kong under the British administration as a free port serves as an important foreign trade entrepot and investment outlet for China.

Contrary to China’s position, in the view of the British Government, the Treaties on Hong Kong which were concluded in the context of international law prevailing at the time, formed the legal basis of the British presence and rule of Hong Kong. But the 99 year lease of the “New Territory” under the 1898 convention would expire by the year 1997. Yet, in terms of economy and the life conditions of the people, the three parts forming Hong Kong are inseparable and interdependent, under the circumstances, the British could not help other than took the initiative to approach the Chinese government in the late 1970s for an overall settlement of the question of Hong Kong. During the early stages of talks, between the parties, the British could concede to the abrogation of the three treaties by 1997, with China retaining the sovereignty over Hong Kong, but Hong Kong should remain under British administration.

On the other hand, China unshakably maintained its basic position that given the invalidity and illegality of the three treaties, China’s full sovereignty over Hong Kong could never be in question. This basic position of China was not negotiable, Hong Kong must be recovered to China and the instrument that should result from the diplomatic talks between the two parties must not be in the form of abrogation of the three Treaties.

As a result, the Joint Declaration concluded between China and the United Kingdom at the end of diplomatic talks and signed on 19 December 1984 had no trace of any reference to the three Treaties. The Preamble of the Joint Declaration simply reads:

The two Governments “agreed that a proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further strengthening and development of the relations between the two countries on a new basis”.

Here, the wording “left over from the past” could in no sense be understood to refer to the three Treaties. Consistent with the above wording of the Preamble, the crucial paragraphs of the main text of the Joint Declaration are in the form of unilateral declarations of the two states. Thus, paragraph(1) states that China

“declares that to recover Hong Kong area ( including Hong Kong Island, Kowloon and the New Territories, hereinafter referred as Hong Kong ) is the common aspiration of the entire Chinese people, and that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997.”

The wording of this paragraph unmistakably reflects  China’s unshakable position on the question of Hong Kong.

Paragraph (2) states that “ the Government of the United Kingdom declares that it will restore Hong Kong to the People’s Republic of China with effect from 1 July 1997”.