CO537-3711 — Page 58

based on the other contemperaneous leases granted by China and should say in this paper what happened with regard to jurisdiction in each lease.

Paragraph 24 and Paper G. On the whole I do not think we should include Mr. Mervyn Jones's Paper G in the case to the Law Officers. It is an interesting paper and would be useful if we ever found ourselves going to the International Court, but, apart from one paragraph which I have suggested should be included in Faper F, there is not really sufficient in it which has a bearing on the point now submitted to the Law Officers to trouble them with it. I think we might replace Faper G by a small paragraph in the case which might go, very roughly, on the following lines:-

But

"Paragraph

above discussed what light is thrown upon the matter by other leases granted by China to other Powers in this period. An investigation has been made to sea

to what extent, if at all, any light

is thrown upon it by either (1)discussions of international leases by legal

writers of authorities, and (2) leases of territory granted by other Powers in other parts of the world. It is not thought, however, that any assistance can be obtained from either of these sources. Lauterpacht discusses the question of international leases in "Private Law Analogies" etc. Mr. Young discusses it in

In the main, these authors devote themselves to the question where sovereignty in the leased area lies. They discuss, for instance, where sovereignty lies in a case where, (as in the remainder of the leased territories near Hong Kong), (i) China was the sovereign and granted the lease to the U.K.: (ii) during the period of the lease the U.K. has complete jurisdiction: (iii) at the end of the lease the jurisdiction reverts to China. In substance the question which they discuss is whether sovereignty is divorced from the exercise of sovereignty. The question is whether the international law sovereign always the state by whom, for the time being, the sovereignty is in fact exercised, or whether, sovereignty and its exercise being divorced, the sovereign is the state which has the right in remainder at 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 of jurisùiction 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

can be

to/

To the exercise of Sovereignty