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“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 19^th 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 19^th 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.