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SOVEREIGNTY OVER HONG KONG

 

CISSY K.S. LAM

(Graduate of the Department of Law U.C.W. Aberystwyth)

 

(Published in the Cambrian Law Review 1985)

 

 

 

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SOVEREIGNTY OVER HONG KONG.. 1

CISSY K.S. LAM... 1

Introduction. 1

The Principle of Self-determination. 3

Who is Entitled to Self-determination?. 5

Self-determination and Decolonisation. 6

Self-determination and Hong Kong as a Colony. 7

The Principle of Territorial Integrity. 8

The Operation of the Principle of Territorial Integrity Against Secession. 8

The Salt Water Fallacy. 10

Territorial Integrity and Colonial Enclaves. 10

The Western Sahara Case. 11

Claims of Historical Sovereignty. 13

China’s Claim of Historical Sovereignty. 15

Political Stability and Economic Viability. 15

Intertemporal Law.. 17

Internal Self-Determination. 19

BIBLIOGRAPHY.. 22

JOURNALS. 22

OFFICIAL PUBLICATION AND DOCUMENTS. 23

ABBREVIATIONS. 24

 

 

            Introduction      [Back to Top]

 

            “Prosperous but precarious, energetic on borrowed time in a borrowed place, that is Hong Kong.”  … a shrewd and succinct description made by a Shanghai businessman who had escaped to Hong Kong when the Communist Government took over Shanghai in 1949.[1]

 

            You may find Hong Kong as a dot on the map somewhere along the southeast coast of China.  This tiny dot represents only about 400 sq. miles of area, but into it is crammed a population of about 5 million.  It comprises the Hong Kong Island, the small district of Kowloon on the mainland just opposite, the interland known as the New Territories and a number of surrounding islands.[2]

 

            The territories were seized from China in three separate stages in the 19th century.  It all began with the appointment of Lin Tse-Hsu as the new Commissioner for the Suppression of Opium.  He was foolish[3] enough to take vigorous measures against the British opium merchants.  He should have known that the opium trade though sinister (from China’s point of view) was lucrative (at least to the British Government) and was crucial to the economy of British colonialism in Asia.  In 1830, the Auditor General of the East India Company stated flatly that India depended entirely on the profits of “the China trade”.[4]  The Opium War (1840-42) was thereby unavoidable.  Part of the price China was forced to pay for a settlement of this was the cession of the Island of Hong Kong in perpetuity to Britain under the Treaty of Nanking 1842.[5]  British interests had been seeking just such an island base for some time in order to facilitate penetration into the China Market.  Hong Kong was chosen because it was so close to Canton and was an exceptionally good refuge during typhoons.[6]

 

            The second part of Hong Kong was acquired in 1860 after a British force had invaded Peking, looted the Forbidden City and burnt down the Summer Palace.  The Convention of Peking 1860[7] was signed with the result that the Kowloon Peninsula and the main island adjacent to it, the Stonecutters’ Island, was also ceded to Britain in perpetuity.

 

            The third stage of seizure came in the wake of the Sino-Japanese War of 1894, when China was simply too weak to put up resistance to any threat of force.  Britain of course took advantage of this opportunity and managed to secure a 99-year lease on the new Territories and the surrounding island in the Convention for the Extension of Hong Kong 1898.[8]

           

            The lease of territories was a common 19th century device for securing possession of important access ports.  It operates in similar fashion to municipal leases so that the effective sovereignty of the leased territory passed with the grant of the lease, the reversion remaining in the grantor.  Legally then, the sovereignty of the New Territories and the surrounding islands must be returned to China when the lease runs out in 1997, while the rest of Hong Kong will remain under British rule, such areas being ceded to Britain in perpetuity.  Yet, the leased area covers over 90% of the whole of Hong Kong.  If it were returned to China, the rest of Hong Kong would simply not be viable on its own.  In any event, China is not concerned with the leased area alone, she wants the whole of Hong Kong back because Hong Kong is and has always been a part of China and she (or, rather, the Communist Government) has never recognized any of the three treaties as valid or binding, all of them being obtained by force.[9]

 

            China has made its position clear on a number of occasions.  Its overall attitude is perhaps best summed up by a 1967 article in the People’s Daily:

 

“Hong Kong has been Chinese territory since ancient times.  This is a fact known to all, old and young, in the world.  More than a century ago British imperialism came to China by pirate ships, provoked the criminal ‘opium war’, massacred numerous Chinese people, and occupied the Chinese territory of Hong Kong.  Later it snapped up the Chinese territory of Kowloon and the Chinese territory of New Territories.  This is an enormous blood debt British imperialism owes to the Chinese people.  Sooner or later the Chinese people will make a thorough-going liquidation of this debt.”[10]

 

            The Principle of Self-determination         [Back to Top]

 

            It is quite inconceivable in the present day international law that any discussion concerning a colonial situation would not begin with a discussion of the principle of self-determination.  Despite the various arguments as to the legal status of the principle, its importance as the backbone of the decolonization process has not been questioned.

 

            One may trace the root of the principle back to the time of the French Revolution, when dynasticism became superseded by the doctrine of popular sovereignty:  government should no longer be based on the claim and consent of the monarch, but on that of the people.[11]  The underlying idea is simple enough:  let the people decide.  But this immediately poses a problem:  the people cannot decide until someone has decided who the people are.[12]  And when Woodrow Wilson introduced the principle into the Covenant of the League, he astounded many, even his close associates, as playing with fire.  The principle could open the floodgate to claims of secession by any dissatisfied minorities.[13]  Both the Committee of Jurists[14] and the Commission of Rapporteurs[15] in the Aaland Islands Case 1920 agreed that to allow a national group to separate itself from the State of which it forms part by the simple expression of a wish would be an intrusion on the sovereignty of the State.

 

            The lack of definition and the limitation placed on it by territorial sovereignty have led many writers to deny the principle carrying any legal force.[16]  It is not here possible to go any length into these legal arguments;  I am not trying to sweep everything under the carpet, but if one accepts that in the international arena where politics intermingle with law and the outcome of a particular case or the behaviour of any one Member State is necessarily judged and dictated by the practice and consensus of the whole community, then it seems to me more important to examine the pattern of current state practice than to concern oneself with the theories.

 

            The principle of self-determination has been incorporated into Arts.1(2) and 55 of the U.N. Charter as the basis for the development of peaceful and friendly relations among nations.  It has since been affirmed and applied by many subsequent General Assembly and Security Council Resolutions concerning non-self-governing or dependent territories.

 

            It is again a much argued topic whether United Nations Resolutions possess any binding legal force.  Of course it is unlikely that anyone would dare to assert that a single resolution could automatically create a legal obligation on States, but equally, no one would deny that a number of them with similar content, repeated through time and voted for by an overwhelming majority would not at least reflect a general opinion juris that might ultimately have the effect of bringing law into being.[17]

 

            Among the many resolutions and declarations relating to the principle, the landmarks are undoubtedly:-

 

1.              Declaration on the Granting of Independence to Colonial Territories and Peoples 1960[18]

 

2.             International Covenant on Civil and Political Rights 1966[19]

 

3.             Declaration on principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations 1970[20]

 

In all cases, it is stated:

 

“All peoples have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

 

Who is Entitled to Self-determination?        [Back to Top]

 

            It has been pointed out that the first problem relating to the principle of self-determination is the very determination of the “self”.  It can be seen that in the two Articles in the Charter and the many General Assembly Resolutions, the right of self-determination is always referred to as the right of “peoples”.  This term is, however, just as vague.

 

            When the Secretariat was asked to prepare a list of all occasions in which the words “nations”, “states”, and “peoples” were used in the draft of the Charter, it reached the conclusions that:-

 

“1.        The word ‘states’ is used … to indicate a definite political entity … (It occurs) in both security and non-security fields … (as well as) when a distinction is being made between a member and a non-member.

 

 2.        The word ‘nations’ is broad and general enough to include colonies, mandates, protectorates, and quasi-states as well as states … (It) seems preferable in order to emphasise the idea of friendly relations among all types of political entities.

 

 3.        The word ‘people’ (is) used in connection with the phrase  ‘self-determination of peoples’ … this phrase is in such  common usage that no other word seems appropriate.”[21]

 

Concerning the juxtaposition of the words ‘nations’ and ‘peoples’ in Arts.1(2) and 55, it was said that no difficulty would arise “since ‘nations’ is used in the sense of all political entities, states and non-states, whereas ‘peoples’ refers to groups of human beings who may, or may not, comprise states and nations.”[22]

 

The Secretariat has, therefore, given the word ‘peoples’ a very wide meaning.  It is used whenever the idea of “all mankind” or “all human beings” is to be emphasized.[23]  The lack of precise definition has been one of the objections raised by the Administering Powers when abstaining in the votes for the 1960 Declaration.  In 1958, the United States had proposed to establish an ad hoc commission to conduct a thorough survey of the concept of self-determination.  This was rejected by the anti-colonialists who regarded that a rigid definition would only serve to provide the Administering Powers with a pretext for denying or delaying self-determination.  They wished to reserve it for the “mature” judgment of the international community to identify a genuine case of self-determination.[24]

 

Indeed, the wide meaning given to the word ‘peoples’ plus the equally vague and wide competence of the Organisation to deal with matters in relation to the maintenance of international peace and security mean that the United Nations can act in the promotion of the right for any entity or group whenever (in accordance with its “mature” judgment) it deems appropriate.

 

Self-determination and Decolonisation                [Back to Top]

 

            In practice, the principle has found its dominant manifestation in the process of decolonization.  Even critics like Emerson and Gross have to acknowledge the “impressively large”[25] number of people set free from colonial domination by virtue of the application of this principle.  Numerous examples can be cited;  Algeria, Mauritania, India, Malaysia and the recent case of Rhodesia (now Zimbabwe) are but a handful of them.

 

            The 1960 Declaration in the preamble recognizes that “the people of the world ardently desire the end of colonialism” and solemnly proclaims “the necessity of bringing to a speedy and unconditional end colonialism in all its forms.”[26]

 

            And in Res. 1541(xv)[27] which contains principles to guide Members in determining whether or not an obligation exists to transmit the information called for in Art. 73(e) of the Charter in relation to non-self-governing territories, it is stated in the First Principle that “the authors of the Charter … had in mind … territories which were then known to be of a colonial type.”

 

            Little doubt can remain, all the spearheads are pointing towards colonialism.  It is no longer legal or legitimate.  In fact, this feeling against colonialism is so extreme that it has meant there is one decision which colonial peoples cannot make:  to remain under colonial rule.  So the referendum held in Gibraltar in 1967 showing a general wish to remain affiliated to the United Kingdom was viewed with suspicion and the General Assembly declared that the referendum contravened previous resolutions which had recommended negotiate solution with Spain.[28]

 

            It was part of the Argentine argument in the case of the Falklands that self-determination should not be invoked in order to maintain colonialism.  Self-determination can be applied to “existing sovereignty or nascent independence” but not to the continuation of colonialism.[29]

 

            A colonial arrangement exists where there is “the subjection of peoples to alien subjugation, domination, and exploitation.”[30]  Thus Southern Rhodesia, though considered self-governing by the United Kingdom since 1923, was treated as a non-self-governing territory by the General Assembly because of the white minority in power.[31]

 

            Self-determination and Hong Kong as a Colony                   [Back to Top]

 

            Hong Kong is administered along the lines traditional for a British colony.  The local head of government is the Governor[32] who is the representative of the Queen and who is appointed by the Queen.  He is served by two main advisory bodies … the Executive Council and the Legislative Council.  Members of the two councils are again appointed and not elected.[33]  So the population of Hong Kong, 98% of which are Chinese, have little say in their own internal or external policies and future, but are entirely at the mercy of the British Government, over a thousand miles away.

 

            On this basis, the right of self-determination should be readily available to Hong Kong and put upon the British Government the responsibility to end its colonial rule, having due regard to the freely expressed wishes of the people of Hong Kong.  Unfortunately, however, the matter does not end here, there is a second and a much higher hurdle to overcome … the claim of sovereignty by the Chinese Government.

 

            In March 1972, China’s Permanent Representative to the United Nations, Huang Hua, in a letter to the Special Committee of 24, requested that Hong Kong and Macau be removed from the list of territories covered by the 1960 Declaration.  Hong Kong, he maintained, is part of Chinese territory occupied by the British Authorities.  The settlement of the question of Hong Kong is entirely within China’s sovereign right and should be made in an appropriate way when “conditions are ripe”.  The United Nations has no right to discuss this question and Hong Kong does not fall under the ordinary category of colonial territory.[34]

 

            The Principle of Territorial Integrity                        [Back to Top]

 

            By maintaining that Hong Kong is an integral part of Chinese territory, China is here basing her claim on the principle of territorial integrity which is still a powerful weapon against self-determination.  The old fear that self-determination is an intrusion on territorial sovereignty as expressed in the Aaland Island Case[35] is still very much alive.

 

            The 1970 Declaration on Friendly Relations ends with the note that:

 

“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States …”

 

            Despite the authoritative formulation of the principle of self-determination in para.2, para.6 of the 1960 Declaration reads:

 

“Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”

 

So it seems that respect for territorial integrity must come first.  Yet, like the principle of self-determination, the principle of territorial integrity similarly lacks definition:  the integrity of the territory cannot be preserved until someone has decided what the extent of the territory is.  Again an answer can only be found by examining the interpretation of the principle in the state practice.

 

The Operation of the Principle of Territorial Integrity Against Secession             [Back to Top]

 

            The clearest case of a defined territory is of course that of the existing sovereign states in which the respect for territorial integrity rules out any hope for secession.

 

            The International Commission of Jurists Study on the Events in East Pakistan in 1971 commented:[36]

 

“Clearly there can be many minorities, linguistic, racial or religious, which have legitimate rights as such, but which are not entitled to claim the right of self-determination … The right of self-determination is not intended to encourage separation for every grouping which goes to make up the complex pattern of a historical nation.”[37]

 

            Chowdhury was of the same opinion.  He pointed out that the law of the Charter contemplated racial integration and that apart from a few exceptions, the common pattern throughout the world was diversity of language and dialects within a defined state.[38]

 

            During the Biafran War, the Organisation of African Unity (OAU) regarded the preservation of Nigerian unity as a common African interest.  Only 6 states (Tanzania, Zambia, Gabon, Ivory Coast, Haiti and France) granted de facto recognition to Biafra.[39]  U. Thant, the then Secretary-General, asserted that the United Nations:

 

“has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its Member State.”[40]

 

This intolerance of secession is also evident in the Katangan claim to secede from Congo[41], the United Kingdom’s attempted to accord self-determination to the inhabitants of each of the three islands that made up the South Arabian Federation[42] and the request to Spain to ensure that the merger of Fernando Poo and Rio Muni which form Equatorial Guinea[43] would not be disrupted.

 

These cases also illustrate the importance of the principle of territorial integrity in maintaining the precarious stability of Third World States, the vast majority of which are not “nation States”, but “State-nations” in that diverse ethnic, religious, language and culture groupings have to be reconciled within the framework of one State.  This is a legacy of the bad colonial past.[44]

 

In addition, the principle is in line with the current dominant political thinking of majoritarian rule.  Speaking of the claims of the Somali minority at the Addis Ababa Conference of 1963 which established the OAU, the Kenya delegate stated:

 

“The principle of self-determination … has no relevance where the issue is territorial disintegration … If they (the Somali minority) do not want to live with us in Kenya, they are perfectly free to leave us and our territory.”[45]

 

            The principle of territorial integrity has, therefore, a vital role to play in international law.  The anomaly, though, is that the fear of violation is so intense that territorial contiguity is taken as a stronger tie than ethnical or cultural links.  It explains the belief in continental solidarity which has resulted in such organizations as the EEC, the OAU, and the OAS.

 

            The Salt Water Fallacy                      [Back to Top]

 

            In the early days of the anti-colonialist campaign, Hilton Poynton had, in his impressive speech in the Trusteeship Committee of the General Assembly, pointed out five common fallacies about the colonial system;  one of which was the “Salt Water Fallacy”.  Its consequence is two-fold:  it led people to regard overland expansion as above reproach but to ascribe sinister motives to overseas expansion since it was by sea that the European colonialists arrived.

 

            As Poynton described it, the United States and the USSR had expanded as widely as the United Kingdom;  and if the inhabitants of Fiji were not of the same race as the British, neither were the people of Eastern Siberia of the same race as the Moscovites.[46]

 

            Territorial Integrity and Colonial Enclaves                 [Back to Top]

 

            The rule of territorial integrity has come to resemble a doctrine of natural frontiers.  The purest example is the claim of the Republic of Ireland[47] to all the 32 counties of the island of Eire.

 

            The Spanish claim to Gibraltar[48] has a similar geographical cogency.  Reliance on this notion of natural frontiers has even been placed on the claim to the Falklands[49] by Argentina even though the islands lie 300 miles off her coast – “the islands are part of the Argentine continental shelf.”

 

            The difference in attitudes taken by the General Assembly towards colonies which are regarded as colonial enclaves and those which are not is hence not difficult to understand.  In the case of colonial enclaves, the General Assembly appears to favour a delimitation based on the assumption that the territory is already part of the State surrounding it.  This can be seen by comparing the Moroccan claims over Mauritania and Western Sahara and that over Ifni.

 

            Mauritania achieved independence despite Morocco’s persistent claim that it had always been an integral part of the Moroccan national territory.[50]  Ifni, on the other hand, being bounded on three sides by Morocco, was finally integrated into Morocco[51] with the approval of the General Assembly.

 

            The Western Sahara Case[52]                     [Back to Top]

 

            Both Ifni and Western Sahara were former Spanish colonies and were considered together when they first came before the General Assembly in 1963.  The General Assembly had, however, clearly differentiated the legal status of the two territories.[53]  With respect to Western Sahara, the General Assembly had affirmed in various resolutions the decolonization of the territory by means of a referendum under United Nations auspices with a view to enabling the indigenous population to exercise freely its right to self-determination.[54]

 

            Both Morocco and Mauritania entertained claims of sovereignty over the territory based on historical, ethnic and other ties.  The case was referred to the International Court of Justice for Advisory Opinion.  Algeria declared itself interested in the future of the territory and was made a party to the hearing.

 

            It may be interesting to note that all the parties to the claim had voted at one time or another in favour of General Assembly resolutions proclaiming the right of self-determination for the population and all of these states had supported the right in express terms.  The difference between them lay in the different interpretations of the actual content and the role of the principle.

 

            Morocco declared that the fundamental rule was that of decolonization which it characterized as a rule of jus cogens and an ‘end-norm’, towards the attainment of which a variety of techniques and principles, such as self-determination and territorial integrity, were available as ‘means-norms’.  Therefore, a wide range of possibilities lay before the Assembly in its task of decolonizing territories in the light of the United Nations Charter and various resolutions.  The right of self-determination was certainly relevant but it had to coexist with other principles, particularly that of territorial integrity.[55]

 

            Different types of situation could be identified.  Firstly, there was the case of colonial and non-self-governing territories where the right of self-determination applied.  Secondly, there was the case of independent sovereign states where the right of self-determination could not be used to destroy the unity of the states.  There was a third category comprising states which had enjoyed international recognition prior to colonization and had been dismembered.  In such cases, self-determination should give way to reunification and the re-establishment of the former entity’s territorial integrity so that the pre-colonial sovereign state sprang back into existence with all its dismembered parts recovered.[56]  The relationship between Morocco and Western Sahara, so it was claimed, fell into this third category.

 

            The Mauritarian claim was similarly based on territorial integrity and reunification.[57]

 

            The attitude taken by Algeria and Spain was completely the opposite.  Algeria recognized the right of self-determination as one of the greatest principles of contemporary international law and decolonization only one of its manifestations.[58]  The self-determination of a non-self-governing territory was a legally guaranteed right and integration into a neighbouring state could only be justified by the wishes of the population of the former and not upon the basis of any alleged territorial integrity of the latter.[59]

 

            Spain took a similar line in emphasizing self-determination as the fundamental principle, but not in such absolute terms, probably influenced by considerations of her own claim over Gibraltar.[60]

 

            The conflict between the principle of self-determination and the principle of territorial integrity had thus come to a head in the claim and it was hoped that a judicial statement could be obtained to resolve the claim.  The court, however, had timidly declined to give any definitive judgment and left the subject as confusing as it had always been.  It concluded that there was not found any “legal ties” of such a nature as might affect the application of the 1960 Declaration in the decolonization of the territory.[61]

 

            It can perhaps be argued that by implication the court recognized that there might be cases where sufficient ties of territorial sovereignty did indeed exist and that in such cases the respect of territorial integrity might limit any right to self-determination.[62]  This interpretation of the court’s opinion is fortified by the court’s statement that in some instances, the requirement of consulting the inhabitants of a given territory might be dispensed with;  this occurred either when the population did not constitute a people entitled to self-determination or on the conviction that a consultation was totally unnecessary in view of “special circumstances”.[63]  No further explanation was given.  This ambiguity is very much regrettable because it fails to give any concrete description of the kind of situation when sufficient legal ties can be said to exist or when a population does not constitute a “people” or when “special circumstances” are present.  It has opened the door to recognition of past ties of sovereignty by claiming that such ties in the particular case are sufficient to override self-determination or that they constitute “special circumstances”.

 

            Claims of Historical Sovereignty                   [Back to Top]

 

            Claims of sovereignty by alleging a relationship that falls under Morocco’s third category and by advancing arguments similar to, though perhaps not as impressive as, the Moroccan pleadings, have been made in a number of cases:  the Indian invasion of Goa,[64] the Indonesian invasions of West Irain[65] and East Timor,[66] the Argentine invasion of the Falklands,[67] the Spanish claim over Gibraltar[68] and the Guatemalan claim over Belize.[69]

 

            In none of these cases can there be found any conclusive statements on the validity of such claims or on the conflict between the principles of self-determination and territorial integrity.  In every case the General Assembly has not expressly dismissed the claim but has recommended negotiations between the Administering Power and the claimant state.  It seems that in all the cases, supporters for the claimant states are not lacking and that challenges to the claim are directed chiefly against the truth of the assertions that such historical ties exist;[70] and when force is employed, against the use of force.[71]  There is not any direct attack on the validity of the claim itself.

 

            In the case of Gibraltar, a case which is very comparable to Hong Kong in respect of size, geographical connection and historical background, the General Assembly has in Res 2353 (xxII) expressly incorporated para.6 of the 1960 Declaration and, therefore, has implicitly accepted the Spanish contention that a separate Gibraltar destroys the territorial integrity of Spain.[72]

 

            Fox[73] has tried to argue in relation to the case of the Falklands that the operation of para.6 only gives Argentina the locus standi in the dispute, entitling Argentina to be heard in any discussion as to the future of the islands.  This argument is plausible when it is seen that in all the cases the General Assembly has managed to recommend only negotiated solutions.  But if the General Assembly regarded that claims of historical sovereignty had no valid legal basis at all, it could simply ignore them.  The granting of a locus standi might be interpreted as acquiescence to the claims.

 

            It has also been argued that para.6 refers only to future attempts to disrupt an independent state.  The United Kingdom has argued in the case of Gibraltar and Falklands that:

 

“the paragraph is clearly aimed at protecting colonial territories or countries which have recently become independent against attempts to divide them … at a time when they are least able to defend themselves.”[74]

 

To this the cases of Nigeria, Congo, south Arabian Federation and Equatorial Guinea discussed above may be cited as examples.

 

            This is again a plausible contention;  but both arguments may be countered by recalling the history of the drafting of the paragraph.  It had been observed that the wording of the paragraph would seem to cover cases of existing sovereignty only and the representative of Guatemala proposed to specify that “the right of self-determination of peoples may in no case impair the right of territorial integrity of any state or its right to the recovery of territory.”[75]  The proposal was only withdrawn on the understanding expressed by Indonesia that that the wording of para.6 already included such a situation.[76]  So there has always been an acceptance among General Assembly Members that the right to recover territory formerly ceded under colonial aggression may in some cases override the right to self-determination.

 

            Also it has been demonstrated (or at least I hope it has been) that territorial contiguity has in present day international law assumed a special status of supremacy and has assisted in many successful claims and recoveries of colonial enclaves.  In the light of a development in this tenor, claims of retrocession based on geographical proximity and historical bonds are likely to become more forceful.  In fact it is this prominent limitation on the right to self-determination that has led many writers to be critical of the right being a legal right as such.[77]

 

            China’s Claim of Historical Sovereignty                   [Back to Top]

 

            It is not difficult for China to base her claim on the same lines.  The 1981 Census showed that about 98% of the Hong Kong population could be described as Chinese and the calculation was based on the assumption that a person born in Hong Kong is described as Chinese.  Indeed, the people of Hong Kong have never claimed themselves to be of any nationality other than Chinese.  In actual fact, about 41% out of the 98% were born in mainland China, and if the older generation is considered alone, the proportion of population born in mainland China will be even higher.  Most of them originated from Canton Province[78] to which Hong Kong is directly connected and of which Hong Kong, before its cession, formed part.  The two regions are separated by the Shum Chun River which takes about half an hour’s swim to cross.  The dialect spoken in Hong Kong is Cantonese, the dialect of the Canton Province.[79]

 

            So Hong Kong is not only geographically close to China but ethnically, culturally and historically part of China.  The return of sovereignty over Hong Kong to China and the corresponding integration should not violate the spirit against colonialism or alien subjugation;  on the contrary, it is in line with it.  It may even be argued that Hong Kong is a colonial enclave, as Gibraltar has been argued as such.[80]  Although in each case the territory is in the form of a peninsula so that it is connected to the claimant state on one side only, the smallness in size in comparison to that of the claimant state makes it an arguable case.

 

            In the presence of these factors, all leaning in favour of the principle of territorial integrity, there is little reason to expect any strong opposition to China’s adamant claim.  Indeed, no objection was registered when China requested in 1972 to have Hong Kong removed from the list of territories to which the 1960 Declaration applied.[81]

 

            Political Stability and Economic Viability                  [Back to Top]

 

            In his discussion on the East-West Pakistani War, Nanda[82] tried to argue that the right of self-determination should override any claim to territorial integrity in that case.  He gave six features which distinguished it from other cases of secession.[83]  None of the six features, however, it seems, would help Hong Kong.

 

            Only three of them are of general relevance.  He referred to the physical separation of, and the linguistic, cultural and ethnic differences between, the two regions.[84]  A complete opposite is found in the case of Hong Kong.  The other relevant feature pointed out by him was the impact of an independent East Pakistan and West Pakistan and the world.[85]  He thought that an independent East Pakistan had the potential to be economically viable and politically stable and its independence would not undermine that of West Pakistan.

 

            Although there has been an increasing willingness to accord statehood to very small territories[86] and miniature states do exist,[87] considerations of political and economic factors have not been ignored.[88]  The hundred years of colonial rule has meant that the people of Hong Kong know very little about politics.  The external affairs of Hong Kong in the international plane have always been dealt with by the British Government.  It is doubtful if Hong Kong can produce within such a short time sufficient politicians to build up an efficient government.  Its location in the heart of South East Asia makes it easy for the surrounding Asian countries to exert influence, if not military intimidation, on the inexperienced and powerless Hong Kong.  It is very much open to question whether Hong Kong would be able to obtain complete political independence.  There is also the Dragon right behind it who has always considered it part of its domain and who supplies it with the two basic ingredients of life:  food and water.  Confidence in an independent Hong Kong’s economic viability must not be over-estimated either.  The present crisis over its future finds its first blow in the economy.  The outrageous property boom has collapsed;  rich sharks, with no other commitment to Hong Kong than to milk dollars out of it, have began to cut and run.[89]  And Hong Kong dollar has fallen to an all-time low against the US dollar.  Moreover, although the independence of Hong Kong might not weaken China’s economy, it is at least open to argument that an integration would tend to strengthen it.

 

            Such may be political arguments but nonetheless important.  And remembering that the principle of self-determination has a political origin it may have to suffer some political limitations at the same time.[90]  Also, the right to self-determination is intended to be the basis for the development of peaceful and friendly relations among nations,[91] the peace and stability of the region must be taken into account.  Indeed, as the recent cases of Falklands and Belize[92] have demonstrated, a complete indifference to claims of sovereignty by a neighbour state would lead to hostilities and tension in the area.  And whether the British Government would be willing to spend £14 million per head of the Hong Kong population as it did in the Falklands crises to defend them against Chinese invasion is a big question mark.

 

            Intertemporal Law                 [Back to Top]

 

            Perhaps the most powerful argument that can be used to counter China’s claim of sovereignty is the doctrine of intertemporal law.

 

            China has tried to assert that the three treaties under which Hong Kong was ceded to Britain are not valid as they were all signed under duress.  Duress as a ground for invalidating a treaty is now expressly incorporated in Art. 52 of the Vienna Convention 1969:  but it has become the law only since the beginning of this century, in keeping abreast with the increasing abhorrence of the use of force in solving international disputes.  In the 19th century, acquisition of territory by conquest was perfectly acceptable and treaties effecting such an acquisition were perfectly effective.  China’s assertion is therefore in conflict with the intertemporal law doctrine by which “a juridical fact must be appreciated in the light of the law contemporary with it and not the law in force at the time when a dispute in regard to it arises or falls to be settled.”[93]

 

            It is of course open to China to allege that duress has always been an invalidating factor, but this would be to contradict academic opinions and to argue against authorities.  If the argument were successful, it would also put in jeopardy peace treaties signed on the settlement of wars.[94]  There had been circulating in Latin-America in the last century a principle of non-recognition of territorial acquisitions obtained by force.  Attempts to formulate a legal duty of non-recognition may be seen in Art.13 of the Treaty of Union of the American States 1856 and the Caracas Protocol 1883 and a number of other treaties.  Sadly, however, the principle had not been consistently observed and the treaties had not been able to secure ratification.  The principle had not received much acknowledgement until the Stimson Note of 1932.[95]

 

            Alternatively China may adopt Krishna Melon’s theory of “colonialism as constituting permanent aggression”.  Melon used it to justify India’s invasion of Goa in 1961.[96]  In effect he was claiming that colonization was “immoral and illegal” from its inception and as such the doctrine of intertemporal law had no application to colonial titles.  There is not any authority that can be cited to support such a contention.  As had been said, acquisition of title to territory by conquest was a valid mode of acquisition in the last century, a time when colonialism was at its hayday.  When facing the same problem, Spain did not argue that the Treaty of Utrecht 1713 under which Gibraltar was ceded to Britain was invalid because the British conquest was illegal but rather because the seizure was not in the name of Britain and was by an allied force.[97]  A desperate search for possible justification can be sensed in both cases.  In other cases, the question is simply ignored.

 

            It is here submitted that a better argument is frustration of the treaties by supervening illegality.  In the Palmas Island Award 1928,[98] the question of intertemporal law was raised in relation to acquisition of title by discovery.  The Netherlands, while accepting the validity of the doctrine, argued that:

 

“a title to a territory is not a legal relation in international law whose existence and elements are a matter of one single moment … The changed conditions of law developing in later time cannot be ignored in judging the continued legal value of relations which, instead of being consummated and terminated at one single moment, are of a permanent character.”[99]

 

            This argument seems to have found favour with Huber who held that an effective title must be maintained by the “peaceful and continuous display”[100] of territorial sovereignty;  and:

 

“As regards the question which of different legal systems prevailing at successive periods is to be applied to a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights.  The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.”[101]

 

            So, although the operation of the doctrine of intertemporal law may prevent China from challenging the validity of the three treaties and the British title created by them at their inceptions, it leaves room for China to argue that the validity of the treaties and the colonial title can no longer be effectively maintained in view of the present day international law.  And in order to avoid any undesirable impact on peace treaties, it may be argued that the illegality stems from the nature of the title and not from the mode of its acquisition.

 

            Jessup criticized this interpretation of the doctrine as highly disturbing because:

 

“every state would constantly be under the necessity of examining its title to each portion of its territory in order to determine whether a change in the law had necessitated, as it were, a reacquisition.”[102]

 

But even if such a necessity does arise it is not so unjustified or demanding as Jessup has put it.  Title to territory is only a relative concept, it is maintained only when no superior claim is raised.  The concept of prescription has demonstrated how a title can be extinguished by a failure to exercise sovereignty over the territory and by an effective occupation by another state for a sufficiently long time.  This may also require a state to constantly inspect portions of its territory to make sure that there has been no intrusion by another state.

 

            Furthermore, it is submitted that if an act is delictual in its very nature, then the law should be permitted to operate retrospectively, if not to punish it, at least to remedy any wrong it might have done.  No one would raise objection in cases where capital punishment has been abolished by the law that death sentences passed but not executed should be lifted and replaced by other appropriate sentences.  Following the same argument, although the present law against colonialism might not be an authority under which the United Kingdom could be “punished” for her acquisition of the colonial title, it should be an authority under which a retrocession of the title to the former sovereign could be affected.

 

            Internal Self-Determination                  [Back to Top]

 

            So far, it appears that China has a, I dare say, strong case and this would have disposed of the question of sovereignty over Hong Kong.  But to stop here would make this discussion a piece of legal philosophy ignoring the most fundamental issue of the dispute … the total diversity in political and economic ideologies between the people of Hong Kong and the people of China.  This is certainly the most contentious issue in any talk on the future of Hong Kong.  True that the people of Hong Kong feel the shame of being governed by a foreign nation, true that they always consider themselves Chinese people and pride themselves on possessing a long history and culture, but these are not sufficient to erase the fear of any re-union with China whose way of life, government and ideologies are totally alien to the capitalist Hong Kong.

 

            It is helpful in this context to distinguish between external and internal self-determination.  According to Cassesse,[103] “external self-determination” refers to the ability of a people or a minority to choose freely in the field of international relations, opting for independence or union with other states;  whereas “internal self-determination” usually means that a people in a sovereign state can elect and keep a local government of its choice or that an ethnic, racial or religious or other minority within a sovereign state has the right not to be oppressed by central government.

 

            The 1970 Declaration on Friendly Relations states that respect for territorial integrity and political unity presupposes a state that is “possessed of a government representing the whole people belonging to the territory without distinction as to race creed or colour”.  This is interpreted by many writers such as Arechaga, Nayer and Cristescu[104] to mean that self-determination not only protects the freedom of peoples from alien domination but can also be a weapon against unrepresentative and discriminatory government.  The statement is directed specifically against discrimination based on race and religion, but it should not be difficult to extend it to cover discrimination based on political differences.  Of course there are inevitably political differences within a state and states can only operate on a majority government, but what we are concerned with is the re-union of two communities after a period of colonial separation and in such situations it is unrealistic to disregard political and economic differences.  To do so would only give rise to constant disputes and persistent struggles for secession, especially when the difference is between communism and capitalism, the ideologies that split the world into two halves.

 

            In the Aaland Islands Case, the Commission of Jurists though accepted that the disposition of national territory was essentially within the domestic jurisdiction of the State concerned, nevertheless thought that a different consideration should be given where there is not a “definite established political situation” either because “the state is not yet fully formed or because it is undergoing transformation or dissolution”.[105]  It is therefore, possible to argue that before a territory becomes integrated into the parent state, there does not exist a definite political situation and the wishes of the people of the territory to choose a particular political economic or social system should be respected.  It may be observed in all cases of decolonization, emphasises are placed on the wishes of the people and even when it is accepted that territorial integrity should prevail in the particular case, account must still be taken of the interests of the people.[106]  At the non-aligned summit meeting in Delhi in March 1983, a declaration was adopted backing Argentina’s claim to the Falklands but insisting that the wishes of the islanders would be considered in any negotiation.[107]

 

            As the Commission of Jurists observed:

 

“The fact must … not be lost sight of that the principle that nations must have the right of self-determination is not the only one to be taken into account.  Even though it is regarded as the most important of the principles governing the formation of states, geographical, economic and other similar considerations may put obstacles in the way of its complete recognition.”[108]

 

This statement, though made back in 1920, is a fair appraisal of the present state of international law.  The Commission then went on to recommend:

 

“Under such circumstances, a solution in the nature of a compromise, based on an extensive grant of liberty to minorities may appear necessary according to the international legal conception and may even be dictated by the interests of peace.”[109]

 

            In that case, certain guarantees were accorded for the protection of the Islanders while sovereignty over the Islands was recognized to belong to Finland.  A similar compromise was reached in the case of Cyprus.  For the purpose of external self-determination, a strict territorial criterion was followed so that the Cypriots as a whole, whether of Greek or of Turkish origin, was considered as a nation on their own.  For the purpose of internal self-government, the subjective expression of the wishes of the Turkish minorities was noted and sufficient representation in the government was accorded to them.

 

            Similarly such a compromise should be made, and the fact that Hong Kong possesses a geographically distinct territory makes it distinguishable from the above two cases and from the Blacks in the United States or the Asians in East Africa.  Measures above mere minority protection may be taken.[110]

 

            Indeed, a compromise has been envisaged by China.  While being adamant in her claim of sovereignty, she has planned to turn Hong Kong into a Special Administrative Zone.  Art.31 of the new Constitution of the People’s Republic of China reads:[111]

 

“The State may establish Special Administrative Regions when necessary.  The systems to be instituted in (such) Regions shall be prescribed by law enacted by the National People’s Congress in the light of the specific conditions.”

 

The detailed structure of such a region is still to be determined but it is generally believed that a sufficient degree of autonomy would be given to Hong Kong, as in the case of Tibet and Xingiang Uighur.[112]  No doubt changes will be effected to create a structure that is as near to communist ideologies as is possible, but China has intended to establish a local government so that internally Hong Kong would be administered in as much the same way as it is now.  It is as much in the interest of China that Hong Kong should be allowed to pursue its present economic policies.

 

            What is still worrying the Hong Kong population, however, is that China has made promises before which she has not kept.  The fall of Shanghai is but one example.  Also the Chinese Government has appeared unstable.  One only has to look at the complete turn in policies after Mao’s death to see this.  The present most powerful man in the government is the eighty years old Deng Xiaoping and who can predict what will happen after his death.  The present negotiations are no doubt aimed at exacting more concrete guarantees from the Chinese Government.  The negotiations have been described as useful every time, but just how “useful” they are is not known.  It is submitted that the best way would be to request for United Nations supervision, perhaps in the same fashion as that in the Aaland Islands Case where provision was made for machinery through which the Islanders could petition to the Council of the League where the guarantees were not observed.

 

 

BIBLIOGRAPHY            [Back to Top]

 

Brownlie  :      Basic Documents in International Law (Oxford 1983); International Law and the Use of Force by States (Oxford 1964).

 

Cassese (ed.)  :            Current Problems of International Law.  Essays on U.N. Law and the Law of Armed Conflict (Milan Dott A. Guiffre 1975).

 

Endacott G.B.  :         Government and People in Hong Kong 1841 – 1962 (Hong Kong UP 1964).

 

Greenburg M.  :         British Trade and the Opening of China (Cambridge 1951).

 

Higgins R.  :   The Development of International Law through the Political Organ of the U.N. (Oxford 1963).

 

Hughes  :        Hong Kong:  Borrowed Place … Borrowed Time  (Andre Deutsch, London 1976).

 

Jenks C.W.  :  The Prospects of International Adjudication (London 1964).

 

Jenner W.J.E. &

Wilkinson E.P.  :        Modern China  (London 1982).

 

Jennings  :      The Approach to Self-Government (London 1956).

 

Kilson M.  :     New States in the Modern World  (Harvard 1975).

 

Langer  :         Seizure of Teritory  (Princeton 1947).

 

McNair  :        Law of Treaties  (Oxford 1961).

 

Miller L.  :       World Order and Local Disorder  (Princeton 1967).

 

Muchlinski  :  Self-determination in International Law  (British Institute on Human Rights 1979).

 

Rigo Sureda A.  :        The Evolution of the Right of Self-determination  (A.W. Sythoff International Publishing Co. BV. 1973).

 

JOURNALS     [Back to Top]

 

Ashford  :        The Irredentist Appeal in Morocco and Mauritania (1962) 15 Western Political Quarterly 641.

 

Calvert  :         Sovereignty and the Falklands Crisis (1983) 59 Int’l Affairs 405.

 

Chowdhury s.  :          The Status and Norms of Self-determination in Contemporary International Law (1977) 26 Netherlands I.L. Rev. 72

 

Dunnett D.  :  Self-determination and the Falklands (1983) 59 Int’l Affairs 415.

 

Elliott  :           The East Timor Dispute (1978) 27 ICLQ 238.

 

Emerson R.  : Self-determination (1971) 65 AJIL 459.

 

Engers J.  :     From Sacred Trust to Self-determination (1977) 26 Netherlands I.L. Rev. 85.

 

Fawcett J.E.S.  :         Gibraltar:  The Legal Issue (1967) 43 Int’l Affairs 236.

 

Fox H.  :          The Falkland Islands Confrontation (1983) Int’l Rel. 2454.

 

Higgins R.  :   The U.N. and Lawmaking (1970) 64 AJIL 43.

 

Hodges T.  :    The Western Sahara File (1984) 6 Third World Quarterly 74.

 

Jessup  :          (1928) 22 AJIL 735.

 

Nanda Ved P.  :          Self-determination in International Law:  The Tragic Tale of Two Cities (1972) 66 AJIL 321.

 

Pomerance M.  :         Self-determination and Primitiveness (1974) CYIL 38.  The U.S. and Self-determination:  Perspectives on the Wilsonian Conception (1976) 70 AJIL 1.

 

Shaw  :            The Western Sahara Case (1978) BYIL 118.

 

Thorndike T.  :            Belizian Political Parties:  The Independence Crisis and After (1983) 21 Journal of Commonwealth and Comparative Politics 195.

 

Wight M.  :     International Legitimacy (1972) 4 Int’l Rel. 1.

 

 

OFFICIAL PUBLICATION AND DOCUMENTS     [Back to Top]

 

British Command Papers (Cmnd).

 

Cristescu  :      Report of Sub-Committee on Prevention of Discrimination and Protection of Minorities to Commission on Human Rights (AUG 1974) E/CN.4/1160.

 

            Historical and Current Development of Right to Self-determination on basis of U.N. Charter  (JULY 1978) E/CN.4/Sub.2/404.

 

General Assembly Official Records 1946 – (GAOR).

 

Hong Kong 1983 (Hong Kong Government Information Services 1983).

 

Hong Kong: A Case to Answer (Hong Kong Research Project Spokesman Books 1974).

 

International Court of Justice, Reports and Pleadings 1947 – (I.C.J.).

 

International Commission of Jurist Report on Events in East Pakistan 1971 (Geneva 1972).

 

League of Nations Official Journal (LNOJ).

 

League of Nations, Report of the Commission of Inquiry into the Aaland Islands Question  Council of Document B.7.21/68/106 (16 APRIL 1921).

 

Reports of International Arbitral Awards 1928 (RIAA).

 

Security Council Official Records  (SCOR) 1946.

 

United Nations Charter 1945.

 

United Nations, Documents of the Conference on International Organisation (UNCIO) San Francisco (1945) 16 Vols.

 

United Nations Monthly Chronicle 1964.

 

United Nations Yearbook (YUN) Department of Public Information 1947.

 

 

ABBREVIATIONS          [Back to Top]

 

            AJIL                :           American Journal of International Law.

 

            BYIL               :           British Yearbook of International Law.

 

            CYIL               :           Canadian Yearbook of International Law.

 

            EEC                 :           European Economic Community.

 

            Ibid                 :           Ibidem.

 

            ICLQ               :           International and Comparative Law Quarterly.

 

            Int’l Affairs     :           International Affairs.

 

            Int’l Rel.          :           International Relations

 

            Mtg.                :           Meeting.

 

            Netherlands I.L.

            Rev.                 :           Netherlands International Law Review

 

            NPC                :           National People’s Congress.

 

            OAS                 :           Organisation of American States.

 

            OAU                :           Organisation of African Unity.

 

            Plen.                :           Plenary.

 

            Res.                 :           Resolution

 

            Sess.                :           Session.

 

            Supp.               :           Supplement.

 

            U.N.                :           United Nations.

 

            Vol.                  :           Volume.

 



[1]            Richard Hughes:  Hong Kong:  Borrowed Place … Borrowed Time, see his acknowledgement.

 

[2]               G.B. Endacott:  Government and People in Hong Kong 1841 – 1962, (1964 Hong Kong University Press) p.3.

 

[3]           Still I am quite proud to have the same surname as his.  It’s different English translations, that’s all.

 

[4]              Cited in M. Greenburg:  British Trade and the Opening of China, (Cambridge University Press 1951), p.15.

 

[5]           Parry:  The Consolidated Treaty Vol.93 (29 AUG 1842), p.p.465 – 470, (Oceana Publications Inc. 1969).

 

[6]              i.e. violent hurricanes.

 

[7]               Parry:  (ibid n.5) Vol.123 (24 OCT. 1860), pp.71 – 74

 

[8]           Parry:  (ibid n.5) Vol.186 (9 JUNE 1898), pp.310 – 311.  This brief summary of the history of Hong Kong is taken chiefly from Hong  Kong:  A Case to Answer, (Hong Kong Research project Spokesman Books 1974), pp.8 – 9.

 

[9]           The Guardian (22 SEPT 1983 Thursday), p.13, “Duet of the Deaf and Dumb.”

 

[10]             People’s Daily (20 AUG 1967);  in English in New China News Agency, Peking (20 AUG 1967);  Cited in Hong Kong:  A Case to Answer (ibid. n.8) Appendix 1 p.48.

 

[11]           For a stimulating reading on the evolution of the principles of self-determination and territorial integrity, see Martin Wight:  International Legitimacy (1972), 4 Int’l Rel. 1;  also see Rigo Sureda:  The Evolution of the Right of Self-determination (A.W. Sythoff International Publishing Co. VB. 1973) pp.17 – 25.

 

[12]              Jennings:  The Approach to Self-Government, (London 1956), pp.55 – 56.

 

[13]              Robert Lansing:  Self-determination, Saturday Evening Post 9 APRIL 1921.  Cited in Michla Pomerance:  The U.S. and Self-determination:  Perspectives on the Wilsonian Conception (1976), AJIL Vol.70 p.1 at p.10.

 

[14]             LNOJ Special Supp. No.3, (OCT 1920), p.5.

 

[15]              League Council Doc. B7.  32/68/106, (16 APRIL 1921).

 

[16]             For arguments against, see e.g.s.:  Leo Gross:  The Right of Self-determination in International Law (in New States in the Modern World ed. Martin Kilson);  Rupert Emerson:  Self-determination (1971), 65 AJIL 459;  J. Engers:  From Sacred Trust to Self-determination (1977), 26, Netherlands I.L. Rev. 85.  For arguments for, see e.g.s.:  Rosalyn Higgins:  The development of International Law through the Political Organ of the U.N. (1963), pp.101-2;  S. Chowdhury:  The Status and Norms of Self-determination in Contemporary International Law (1977), 26, Netherlands I.L. Rev.72;  Muchlinski:  Self-determination in International Law (British Institute on Human rights 1979).

 

[17]           Emerson (ibid.) p.460;  Rosalyn Higgins:  The U.N. and Lawmaking (1970), 64 AJIL43.

 

[18]             G.A. Rees.  1514 (XV) (13 DEC 1960) GAOR 15th Sess. Supp.16, p.66.  (Adopted by 89 votes to 0, 9 abstentions – Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, U.K. and U.S.A.).  See Brownlie:  Basic Documents in International Law, (Oxford 1983), pp.298 – 301.  Herein referred to as the 1960 Declaration.

 

[19]             G.A. 1496th plen. mtg. (16 DEC 1966).  See Brownlie (ibid.) pp.257 – 297;  On 31 DEC 1981, there were 69 parties to the Covenants, including the U.K.

 

[20]             G.A. Rees.  2625 (XXV) (24 OCT 1970).  See Brownlie (ibid.) pp.35 – 44;  Adopted without a vote;  Herein referred to as the 1970 Declaration on Friendly Relations.

 

[21]           U.N. Conference on International organization (UNICO) Vol.XVIII p.657.

 

[22]             Ibid. p.658.

 

[23]             Ibid.  p.658.

 

[24]             See e.g. The Pakistani Representative as quoted in the Report on the Right of Self-determination by Cristescu (1974);  also Emerson (ibid. n.17).

 

[25]          Emerson (ibid. n.16) p.461;  Gross (ibid. n.16).

 

[26]             Also see 1970 Declaration on Friendly Relations.

 

[27]             Rigo Sureda (ibid. n.11) pp.367 – 370, Appendix F.

 

[28]             See G.A. Rees.  2231 (XXI), 2353 (XXII) and A/6700/Rev.1;  Report of the Special Com. of 24, Chap. X.

 

[29]             Fox:  The Falkland Islands Confrontation (1983), Int’l Rel. 2454 at p.2474.

 

[30]             Para.1, 1960 Declaration;  also 1970 Declaration on Friendly Relations and the two Covenants on Human Rights.

 

[31]              See e.g. G.A. Rees.  2012 (XX) and Rigo Sureda (ibid. n.11) pp.177 – 179.

 

[32]          Currently Sir Edward Youde.

 

[33]             See Hong Kong:  A Case to Answer (ibid. no.8), pp.13 – 19;  Hong Kong 1983 (Hong Kong Govt. Information Services 1983), pp.6 – 8.

 

[34]             U.N. Doc. A/AC 109/396;  cited in Hong Kong:  A Case to Answer (ibid. n.8), pp.48 – 49.

 

[35]             See p.3 above.

 

[36]             International Comm. Of Jurist Report on Events in East Pakistan 1971, (Geneva 1972), p.70.

 

[37]          The significance of historical ties will be more fully examined later, see p.15.

 

[38]          Chowdhury (ibid. n.16) p.76.

 

[39]             Martin Wight (ibid. n.11), p.14.

 

[40]          7 U.N. Monthly Chronicle (FEB 1970), p.36.

 

[41]             S.C. Rees.  145 (22 JULY 1960), SCOR 879th Mtg.;  see generally L. Miller:  World Order and Local Disorder 1967, pp.66 – 116.

 

[42]             (1967) YUN, p.653.

 

[43]             Res. s 2230 (XXI) and 2355 (XXII).

 

[44]             Shaw:  The Western Sahara Case (1978) BYIL 118 at p.119;  also see Martin Wight (ibid. n.11).

 

[45]             Cited in Martin Wight (ibid.) p.14.

 

[46]             GAOR 2nd Sess. 4th Com. Summary Records 36th Mtg. (3 OCT 1947), pp.30 – 32.  Cited in Martin Wight (ibid.) p.9.

 

[47]          See Martin Wight (ibid. n.11), p.12.

 

[48]             See J.E.S. Fawcett:  Gibraltar:  The Legal Issue (1967), 43, Int’l Affairs 236.

 

[49]             Mr. Amadeo’s speech in General Assembly (29 NOV 1960), GAOR 927th plen. mtg. p.1005.

 

[50]             Ashford:  The Irredentist Appeal in Morocco and Mauritania (1962), 15 Western Political Quarterly 641.

 

[51]           See e.g. G.A. Res.s.2229 (XXI), 2354 (XXII), 2428 (XXIII);  Rigo Sureda (ibid. n.11), p.176

 

[52]          Shaw (ibid n.44);  Tony Hodges (1984) 6, Third World Quarterly 74:  The Western Sahara File.

 

[53]          E.G.  Res 2428 (XXIII).

 

[54]          E.G.  Res 2229 (XXI) GAOR 21st Sess. Supp. 16, p.72.

 

[55]             Pleadings CR 75/26 p.60.

 

[56]             Pleadings CR 75/8 pp.11- 16.

 

[57]             Pleadings CR 75/12 p.38.

 

[58]          Pleadings CR75/31 p.34.

 

[59]             Pleadings CR75/31 pp.36 – 38.

 

[60]             Pleadings CR75/21 pp.14 – 19.

 

[61]             I.C.J. Rep. 1975, p.68.

 

[62]          Shaw (ibid. n.44), p.148.

 

[63]             I.C.J. Rep.1975, p.37.

 

[64]             Rigo Sureda (ibid. n.11), pp.172 – 177;  SCOR 16th yr. 987 and 988 mtgs.

 

[65]             Rigo Sureda (ibid.) pp.143 – 151.

 

[66]             Elliott:  The East Timor Dispute (1978), 27, ICLQ 238.

 

[67]          Denzil Dunnett:  Self-determination and the Falklands (1983), 59, Int’l Affairs 415;  Fox (ibid. n.29).

 

[68]          Rigo Sureda (ibid.) p.183 – 198.

 

[69]          Tony Thorndike:  Belizian Political Parties:  The Independence Crisis and After (1983), 21, Journal of Commonwealth and Comparative Politics, 195.

 

[70]             E.g.s.:  The Western Sahara Case;  Indonesia’s claim over East Timor was questioned by Elliott (ibid. n.66), and similarly having examined the history of the territory, Calvert questioned Argentina’s claim over the Falklands.  See Calvert:  Sovereignty and the Falklands Crisis (1983), 59, Int’l Affairs 405.

 

[71]              E.g. see The Strategic Role of Legal Principles in the Falklands War (1983), 77, AJIL 109.

 

[72]          Rigo Sureda (ibid. n.11), p.184 – 185.

 

[73]             (Ibid. n.67), pp.2474 -2475.

 

[74]             Special Com. of 24, U.N. Doc. A/AC 109/P.V. 284.

 

[75]             A/L 325;  emphasis added.

 

[76]          GAOR 15th Sess. Plen. Mtg. 947th para.8.

 

[77]             Emerson (ibid. n.16).

 

[78]             Or Guangdong Province.

 

[79]             Hong Kong (ibid. n.33);  also Endacott (ibid. n.2) pp.3 – 5.

 

[80]             Rigo Sureda (ibid.) p.198.

 

[81]             (Ibid. n.34).

 

[82]             Ved P. Nanda:  Self-determination in International Law:  The Tragic Tale of Two Cities (1972), 66, AJIL 321.

 

[83]          Ibid.  p.328.

 

[84]             Ibid. pp.329.

 

[85]             Ibid.  pp.333 – 334;  now Bangladesh and Pakistan respectively.

 

[86]             Emerson (ibid.) pp.469 – 473.

 

[87]             E.g.s.  Monaco, Singapore.

 

[88]             Bowett (1966) ASIL 129 at 131.

 

[89]             The Observer:  The Condemned Playground (2 OCT 1983 Sunday), p.9.

 

[90]             See Michla Pomerance:  Self-determination and Primitiveness (1974) CYIL 38 at 64 where he compares the case of S.W. Africa with that of West Irian.

 

[91]          E.g.  Arts. 1(2) and 55 U.N. Charter.

 

[92]             Thorndike (ibid. 69)

 

[93]          Palmas Island Award (1928) Permanent Court of Arbitration 2 RIAA 829.

 

[94]          Jenks: the Prospects of International Adjudication (1964) pp.421 – 422;  McNair: Law of Treaties (Oxford 1961), p.209.

 

[95]          Brownlie: International Law and the Use of Force by States (1963), p.410;  Langer: Seizure of Territory (1947), p.34.

 

[96]          SCOR 16th yr. 987th mtg. para.46.

 

[97]             For a U.K. record, See Cmnd. 3131, p.8.

 

[98]          Ibid. n.93;  Jessup (1928) 22 AJIL 735.

 

[99]          Dutch Memo, cited in Jessup p.735ff.

 

[100]            Ibid n.93 at p.830.

 

[101]          Ibid. n.93.

 

[102]            Jessup (ibid.) p.740.

 

[103]         Cassese: U.N. Law/Fundamental Rights, p.137.

 

[104]            Cristescu:  Historical and Current Development of Rights to Self-determination on basis of U.N. Charter, E/CN4/Sub.2/404 (3 JULY 1978), Vols. I-III and Add. 1.  Explained in Mushlinski (ibid. n.16).

 

[105]         LNOJ Supp. 3 OCT 1920, pp.5 – 6, 14.

 

[106]         E.g.  Res. 2428 (XXIII) on Ifni and Western Sahara.

 

[107]            Denzil Dunnett (ibid. n.67), p.426.

 

[108]            Ibid. n.105, p.6.

 

[109]         Ibid.

 

[110]          Emerson (ibid. n.16), p.472.

 

[111]             5th N.P.C. (4 DEC 1982).

 

[112]             Modern China ed. W.J.E. Jenner & E.P. Wilkinson (1982 London), p.638, Map 1.