SS
IV
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between Hong Kong and China.
(a) Treaty of Tientsin, 26th June, 1858. (S.P.XLVIII, p. 47).
This Treaty, which revoked the Supplementary Treaty of 1843, does not grant any right to the Chinese to enter Hong Kong, nor does it even imply any such right. Article XXI which deals with the surrender of criminals, subjects of China, "who take refuge in Hong Kong" and Article XXIII which, with Article XV of the Supplementary Treaty, makes provision for the recovery of debts from "natives of China why may repair to Hong Kong to trade", do no more than recognise the possibility that Chinese may enter Hong Kong.
Incidentally the fact that this treaty contains no grant to the Chinese of a right to enter Hong Kong confirms the interpretation of Article XIII of the Supplementary Treaty of 1843 which I have advocated in sub-paragraph (c) above. This treaty (Article I) abrogated the Supplementary Treaty on the ground that it incorporated the substance of the provisions of the Supplementary Treaty; if, therefore, Article XIII of the Supplementary Treaty was a grant by H.M.G. of a right of entry to the Chinese and not an undertaking by the Chinese Government to permit trading between China and Hong Kong, one would have expected this treaty also to contain such a grant, which it does not.
It appears quite clear to me, therefore, that the Treaty of Tientsin made no difference to the position of the Chinese and that they continued to enter Hong Kong, as they had done theretofore, at the pleasure of H.M.G.
(e) To sum up
(i) The treaties do not confer, and never have conferred, any
right on the Chinese as against H.M.G. to enter or to settle in Hong Kong.
(ii)
(iii)
The Proclamation of 7th June, 1841, did confer on the merchants of Canton and the other parts of the Chinese Empire an unrestricted right of entry for the purposes of trade but this right was revocable and in any case lapsed on the making of the Supplementary Treaty of 1843.
The Chinese appear as a matter of practice to have been permitted at the pleasure of H.M.G. to enter Hong Kong to trade at least since the Supplementary Treaty of 1843 and probably since 1841, and if they can be said to have any right to enter Hong Kong it must be prescriptive right based on this usage (as to which see paragraph IV below).
Acquisition by Chinese of prescriptive right to enter, or settle in, Hong Kong.
The Foreign Office have no doubt got good authority for stating ((9) on 54064/47) that the Chinese might, through long usage and acquiescence, have acquired by prescription a right to enter, or settle in, Hong Kong, but I have been unable to find any precedent in international law for this. A title to sovereignty over territory can, of course, be acquired by prescription under international law but the case under consideration appears to me to be rather different since the Chinese are not claiming, to have acquired any degree of sovereignty over therefore not clear to me upon/what principles of law the
Foreign Office
erade and it is
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/would