5
1
XIX. The Governor.
.may make and execute
*
P
• 4
grants and dispositions of any lands. be lawfully granted or disposed of by Us."
that may
It is at the very least strongly arguable that unless and until the Order in Council is amended so as to claim jurisdiction after 1997, the Crown cannot lawfully grant that which it does not seek to claim to have itself.
An Order in Council or other United Kingdom legislation would therefore be necessary before the Crown could either (a) grant title to land beyond 1997 or (b) legislate in Hong Kong to empower the Government to do so, because to do either would be exercising jurisdiction beyond the limited period which the Crown has claimed
for itself.
The position would be different had the Crown's own claim to sovreignty been founded upon "usage or suffrance" rather than expressly upon "treaty". In the former case the sovreignty would rest upon the fact of being present and in control and . would be unlimited. So, once 1997 is past, if the U.K. remains in control in Hong Kong, the sovreignty thereafter will be based upon usage and suffrance and will then become total and unlimited in time. It would appear to be upon this basis that British jurisdiction continued in Wei Hai Wei between 1904 and 1930. In 1898 Wei Hai Wei was leased by China to Britain "for so long as Port Arthur remains in Russian hands"; in 1904 Port Arthur was handed back to Japan, but the control and administration of Wei Hai Wei remained in British hands till it was returned to China by a Convention in 1930. (Roberts-Wray p.27).
SECTION II
The so-called "lease" from China
CONCLUSION
I agree with Mr. Rushforth that the 1898 Convention, even though it mentions the word 'lease', is an international treaty, and therefore its legal effect is not to create a so-called "lease" with China but. rather by international agreement to give