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”. 

Neither does this paragraph (2) make any reference to the three Treaties. On the other hand, the word “restore” in the paragraph is significant, since it at least connotes the meaning that the word carries, i.e. Hong Kong is to be given back as a territory which was taken away from China.

I must say that this is an unprecendented treatment of invalidity of unequal treaties imposed by big Powers in history. This practice can be counted as China’s contribution in the process of progressive development of contemporary international law.

Now, I turn to speak on the general specific features of “ One State, Two Systems” as the form of autonomy of HKSAR.

Autonomy of a region within a state is normally related to the so-called “ internal self-determination” of a minority people of a state, designed for the protection and preservation of the rights, culture and religious beliefs of the minority people, as well as their full rights as citizens of the state, including their right to vote and serve in the Government of the state, except that the legal system , defense and foreign relations are strictly within the domain of the national government of the state.

However, Hong Kong was a part of Kwangtung Province before British occupation, Hong Kong people use Chinese written language even during British occupation, the spoken dialect used by Hong Kong people is exactly the same as cantonese just as people in Kwangtung Province. Hong Kong people is not a minority people of China.

Nevertheless, in consideration of the history and present reality of Hong Kong, the Chinese Government decided, upon resuming the exercise of sovereignty, to institute the policy of “One State, Two Systems” with the establishment of HKSAR. Besides, in the interest of the prosperity and stability of Hong Kong and for the sake of confidence of people of Hong Kong in the Central Government’s “One State, Two Systems” policy, as well as manifestation of the firmness and sincerity of the Chinese Government, China took the initiative, much to the surprise of the British delegation, during the diplomatic talks, that China decided that the foresaid basic policies towards Hong Kong upon China’s resumption of sovereignty over the region would be incorporated in the text of the Joint Declaration and China’s unilateral detailed elaboration of “One State, Two Systems” policy would be incorporated as an annex to the Joint Declaration.

The legal basis of the policy of establishment of special regions lies in Article 31 of the 1982 Constitution of China, which provides that

“The state may establish special administrative regions when necessary. The systems to be instituted in the special administrative regions shall be prescribed by laws enacted by the National People’s Congress in the light of specific conditions.”

So far as Hong Kong is concerned, the creation of HKSAR practicing “One State, Two Systems” as provided in the Joint Declaration and its annex was elaborately coded in the Basic Law of HKSAR formally enacted by the National People’s Congress on 4 July 1990 and promulgated by the President of the People’s Republic of China on the same day to take effect from 1 July 1997.

As consistent with the general concept of autonomy, HKSAR is vested with executive, legislative and judicial powers, and the original way of life is retained. As citizens of China, HKSAR elects its representatives to the National People’s Congress and National Committee of Chinese People’s Political Consultative Conference. But the main features of HKSAR, as distinct from the traditional concept of autonomy, lie in the provisions of the HKSAR Basic Law to the effect that no China’s mainland local socialist system and policies are to be practiced in the Region, Hong Kong’s original capitalist system and economy is to remain intact, the laws previously in force in Hong Kong remain basically the same except those inconsistent with the Basic Law, Hong Kong’s status as a free port and separate customs territory remains unchanged. Another distinctive feature lies in the HKSAR judiciary which maintains its previous common law legal system, and precisely for the reason of this difference with the legal system of the Central Government, HKSAR’s judiciary has its own court of Final Appeal.

Just as the normal concept of autonomy in modern history, the most important powers reserved exclusively to the central government are national defense and foreign affairs, as is necessitated for the maintenance of sovereignty and territorial integrity of the state. Thus the Central People’s Government of China maintains a military station consisting of land, naval and air forces in HKSAR for the defense of Hong Kong as part of China’s territory. The Ministry of Foreign Affairs of the Central Government also keep an office in HKSAR.

At this point, I must emphasize that as dictated by “ One State, Two systems”, it is mostly in the area of external affairs that the autonomy of HKSAR is very distinct from other autonomies in modern history of the world. Thus, HKSAR is authorized by the Central Government of China to conduct quite a broad scope of external affairs under certain conditions, other than political and military matters. So far as I know, in other autonomies in modern history, practically no such authorizations are known to exist.

Here, I can only give you a few examples of “One State, Two System” of HKSAR in the field of external affairs. Thus, given promotion of foreign trade and investment is indispensable for the prosperity and economy of the region, HKSAR is authorized to establish official or semi-official trade missions in foreign countries. As a separate customs territory of China, HKSAR maintains its own Customs Administration and can conclude its own trade agreements with foreign countries. Precisely because of this status of separate Customs Territory, HKSAR become a full member of World Trade Organization as provided in the organization’s constitution, under the name of “Hong Kong, China”. HKSAR is also authorized to maintain its own Civil Aviation Administration and under certain conditions to conclude air services agreements with relevant authorities of foreign governments. Further, because of the difference of the legal system of Hong Kong from that of the mainland of China, HKSAR is authorized by the Central Government, on case-by-case basis, to conclude agreements on mutual legal assistance and on surrender of fugitive offenders with foreign governments. 

Also, where there are certain international organizations or conferences in appropriate fields limited to States and affecting the interests of HKSAR, arrangements have been made by the Central Government that representatives of HKSAR serve as members of delegations of China or may attend in such a capacity as considered appropriate by the Central Government and permitted by the international organizations or conferences concerned. In the capacity of members of delegations of China, HKSAR representatives, upon request of the Chinese delegation to the Presiding Officer of the meetings, speak their voices in the name of Hong Kong, China. Their expressed views of the meeting may be different from those of the delegations of the Central Government. China has made such arrangements with Hague Conference on Private International Law, Universal Postal Union (as HKSAR maintains its own Postal Administration), International Labor Organization, World Health Organization. Besides, as HKSAR maintains its own shipping management and is authorized by the Central Government to keep its own shipping registry, arrangements were made by the Central Government with the International Maritime Organization in accordance with its constitutional instrument for HKSAR to be a “quasi-member” of the organization.

Finally, mention should be briefly made as to the extent of China’s treaty obligations to be borne by HKSAR. Given the invalidity of the aforementioned three treaties imposed by the British, the Chinese Government did not view the question of Hong Kong as one of succession, and that the traditional general international law on succession with respect to the case of transfer of a part of territory to another state, do not apply to the case of Hong Kong. In the view of the Chinese Government, whether China’s prevailing treaty obligations would be applied to HKSAR, and whether these multilateral treaties which were applied to Hong Kong before China’s resumption of exercise of sovereignty but to which China is not a party might still be applied to HKSAR, account has to be taken whether such applications are compatible with the avowed “One State, Two Systems”. The matter of extent of application of treaties, both multilateral and bilateral, is fully provided in Article 153 of the Basic Law of HKSAR. Here, I would like to add that there are multilateral and bilateral treaties to which China is a party and which are of such a character that they must be applied to states parties as a whole, or which expressly provide for application throughout all parts of a state party. In such cases, they must be applied to HKSAR. In fact, these treaties are not incompatible with the “One State, Two Systems”. Except for those with the aforementioned character, bilateral treaties concluded between China and other States are basically inapplicable to HKSAR.

Today, China’s “One State, Two Systems” as practiced in HKSAR is highly commended by the international community of states. The resumption of exercise of sovereignty over Macao is also built on the model of “One State, Two Systems”.

To conclude, it can be said that “One State, Two Systems” as a form of autonomy of a region within a state is really an innovation, compared with the traditional concept of autonomy in international law. “One State, Two Systems” is also a commendable form of peaceful unification of country. No doubt, “One State, Two system” is China’s unique contribution to the progressive development of contemporary international law.‍‍‍‍‍‍‍