The Hong Kong Settlement: a Preliminary Assessment
| Date | 01 April 1987 |
| Published date | 01 April 1987 |
| Author | Peter Slinn |
| DOI | 10.1177/004711788700900101 |
| Subject Matter | Articles |
1
THE
HONG
KONG
SETTLEMENT:
A
PRELIMINARY
ASSESSMENT*
PETER
SLINN
IN
OCTOBER,
1986,
Queen
Elizabeth
paid
a
state
visit
to
the
People’s
Republic
of
China,
an
event
which
symbolised
the
new
warmth
in
Sino-British
relations
in
the
aftermath
of
the
conclusion
of
its
Joint
Declaration
on
the
Hong Kong
question
signed
in
December,
1984
and
ratified
in
May,
1985.1
Although
the
Joint
Declaration
is
now
in
force,
and,
as
we
shall
see,
various
steps
are
being
taken
towards
its
implementation,
the
’restoration’
of
Hong
Kong
to
China
is
still
more
than
ten
years
distant.
During
this
period,
Hong
Kong
will
continue
to
be
governed
as
a
dependency
of
the
United
Kingdom
and,
as
such,
remain
part
of
the
Commonwealth.
Even
at
this
early
stage
in
this
inevitably
uneasy
period
of
transition,
it
seems
appropriate
to
examine
in
some
detail
the
’small
print’
of
the
Joint
Declaration
in
the
light
of
the
negotiating
process
by
which
it
was
produced
and
the
issues
regarding
its
implementation
that
have
emerged
subsequently.
The
Negotiations
1982-1984
The
difficult
and
protracted
negotiations
which
followed
the
visit
to
Beijing
of
the
British
Prime
Minister,
Mrs.
Margaret
Thatcher,
in
September,
1982,
were
of
course
conducted
on
a
confidential
basis
and
their
history
cannot
yet
be
written.
However,
before
looking
at
the
text
of
the
Joint
Declaration
which
finally
emerged,
it
is
helpful
to
look
at
some
of
the
issues
which
faced
the
negotiators
in
the
light
of
the
’opening
positions’
of
the
two
sides.
The
strict
logic
of
the
traditional
Chinese
position
suggested
that
there
was
little
to
negotiate
about
other
than
the
timing
and
modalities
of
a
British
withdrawal.
British
claims
to
Hong
Kong
were
based
on
three
nineteenth
century
treaties
with
the
then
imperial
Chinese
government:
the
Treaty
of
Nanking,
1842,
ceding
Hong
Kong
Island
in
perpetuity;
the
Convention
of
Beijing,
1860,
ceding
Kowloon,
also
in
perpetuity;
and
the
further
Convention
of
1898,
under
which
the
&dquo;New
Territories&dquo;
(com-
prising
92
per
cent
of
the
present
total
land
area
of
the
territory)
were
leased
to
Britain
for
99
years
from
1
July,
1898.2
*A
longer
version
of
this
article
was
published
in
the
Annuaire
Franqais
de
Droit
International,
1985.
I
am
grateful
to
my
colleagues
Jill
Barnett
and
Philip
Baker
for
their
comments
on
the
draft.
1
For
full
text
of
Joint
Declaration
and
Annexes,
see
Cmnd.
9543,
HMSO.
2
Anthony
Dicks
"Treaty,
Grant,
Usage
or
Sufferance?
Some
Legal
Aspects
of
the
Status
of
Hong
Kong"
(1983). 95
China
Quarterly
(1983)
p.
427;
P.
Wesley-Smith,
Unequal
Treaty
1898-1997,
Hong
Kong,
1980.
2
.
In
the
Chinese
view,
however,
these
arrangements
were
&dquo;unequal
treaties&dquo;
not
binding
on
the
People’s
Republic,
and,
therefore,
the
British
occupation
of
Hong
Kong
and
the
New
Territories
had
no
legitimate
basis;
China
would
recover
the
whole
of
the
Hong
Kong
area
&dquo;when
conditions
were
ripe&dquo;.
China
regarded
herself
as
sole
custodian
of
the
interests
of
the
Hong
Kong
Chinese
people,
who
were
Chinese
Nationals
under
the
Nationality
Law
of
the
People’s
Republic.
On
this
basis,
the
question
of
the
future
of
Hong
Kong
after
its
restoration
to
China
would
have
been
purely
a
Chinese
internal
affair
quite
outside
the
ambit
of
the
Sino-British
negotiations.
The
fact
therefore
that
the
eventual
settlement
documents
contained
detailed
arrange-
ments
regarding
the
future
of
Hong
Kong
after
restoration
to
China
was
itself
a
considerable
success
for
the
British
negotiators.
The
latter
were
able
to
draw
the
Chinese
into
discussion
of
thes,e
matters
by
detailing
the
formidable
technical
problems
which
any
orderly
handover
would
require
to
be
addressed:
international
trading
arrangements,
shipping
and
civil
aviation,
monetary
matters,
the
public
service,
banking
and
finance,
control
of
land,
legal
continuity
and
external
relations.
The
importance,
not
least
to
China,
of
Hong
Kong’s
survival
as
an
international
commercial
and
financial
centre,
gave
the
British
a
role
which
the
Chinese
side
was
obliged
to
acknowledge
in
substance
if not
in
form.
Unlike
the
Chinese,
the
British
had
vast
experience
in
the ’transfer
of
power’
exercise.
As
we
shall
see,
the
texts
of
the
Joint
Declaration
and
accompanying
documents,
while
in
form
having
ingenious
regard
to
Chinese
susceptibilities,
reflected
a
British
rather
than
a
Chinese
negotiating
agenda.
However,
in
other
matters,
the
Chinese
were
careful
to
preserve
the
negotiating
initiative,
reflected
perhaps
most
obviously
in
the
fact
that
all
negotiations
were
conducted
in
Beijing.
The
Chinese
side
attached
importance
to
preserving
the
bilateral
character
of
the
negotiations:
the
presence
of
the
late
Sir
Edward
Youde,
then
Governor
of
Hong
Kong,
was
only
acceptable
as
a
member
of
the
British
delegation
and
not
as
the
head
of
a
distinct
government
of
Hong
Kong
in
any
sense
recognised
as
representative
of
the
people
of
Hong
Kong.3
The
Chinese
side
was
also
careful
to
deny
the
impression
that
an
agreement
with
Britain
was
a sine
qua
non
of
a
settlement
of the
Hong
Kong
question.
Even
before
the
start
of
negotiations,
various
hints
had
been
given
that,
3
Sir
Edward
Youde
did
in
fact
report
on
progress
of the
negotiations
to
the
Hong
Kong
executive
council or
’cabinet’
and
the
British
Government
accepted
a
commitment
to
take
into
account
the
views
of
the
people
of
Hong
Kong:
Cmnd.
9352,
pp.
6-7.
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