10
While not denying the qualification of "British military requirements for the Defence of Hong Kong", the Chinese do not make it clear precisely what meaning they give to this qualification. In particular, they do not seem to admit that these requirements can justify any British jurisdic- tion in the walled city, whatever limitations on Chinese jurisdiction they may admit as the result of these require- ments.
26. Accordingly the main legal issue is a simple one: namely, is China entitled to jurisdiction over Kowloon City? As the Chinese have throughout the dispute and right up to 1948 based their case on the Treaty of 1898, it hardly seema necessary to discuse what, if any, arguments they might think it to put before a court for the invalidity of the whole leuse. It is conceivable, however, that China might support her clain to jurisdiation over the City by reliance on some overriding rights of sovereignty supposed to remain vested in China as lessor of the territory in question and not transferred by the lease. Paragraph 23 above discussed what light is thrown upon the matter by other leases granted by China to other Fowers in this period. An investigation has been made to see to what extent, if at all, any light is thrown upon it by either (1) discussions of international leases by legal writers of authority; or (2) leases of territory granted by other Powers in other parts of the world. It is not thought, however, that any ascistence can be obtained from either of these sources. Lauterpacht discusses the question of international leases in "rivate Law Sources and Analogies of International Law". Mr. Young discusses it in "The International Legal Status of the Kwantung Leased Territory". But in the main, these authors devote themselves to the question where sovereignty in the leased area 1100. They discuss, for instance, where sovereignty lies in a case where (as in the remainder of the leased territories near Hong Kong) (1) China was the sovereign and granted the lease to the U.K.: (11) during the period of the lease the U.K. has complete jurisdiction: (111) at the end of the lease the jurisdiction reverts to China. In substance the question which they discuss is whether govereignty can be divorced from the exercise of sovereignty. The question is whether, sovereignty and its exercise being divorced, the sovereign is the state which has the right in remainder to the exercise of sovereignty af the expiration of the lease. Lauterpacht also discusses the extent to which the private law with regard to leases affords assistance in the interpretation and application in international leases or jurisdiction over territory, but there does not appear to be anything in what he says which is relevant to the present point.
Apart from China, leases of territory have been granted by one state to another in different parts of the world, but their effect and character differs considerably. There are some instances of a simple lease of a bonded warehouses, such as that by Great Britain to France in 190, or a lease forming part of an arrangement by which the goods of State A pass free of cuatous, etc. through a port in State B, such as the lease by Germany to Czechoslovakia of areas in the ports
On the of Stettin and Hamburg after the First World War. other hand, there are the leases granted to the U.3.A. in British West Indian islands where there are elaborate provis ions with regard to jurisdiction and in effect juriction
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