TNAG-1346-FCO40-1776-Proposed-realignment-of-the-Shenzhen-River-1984 — Page 13

CONFIDENTIAL

Reference

There is however general acceptance of the principle that territory may be acquired by international agreement or by occupation by the riparian state: see Brownlie at page 156 and Sörensen at pages 323-4.

3. At present there is no suggestion of concluding a fresh agreement with China about the proposed realignment of this river, but it is envisaged that Chinese and Hong Kong authorities will for practical reasons continue, after realignment, to patrol all areas lying on their respective sides of the river. In the absence of agreement to the contrary this would be cogent evidence of occupation and acquiescence, and the result, to continue the analogy, would be the transfer of small areas of leased territory to China and vice versa.

4. If this result were thought to be politically satisfactory there would be no particular reason to seek any fresh written agreement with the Chinese authorities (whether central or local). Measures of practical cooperation for carrying out the flood prevention scheme could be settled (and recorded) in the appropriate working group set up in accordance with Parts IV and VII of the Agreement between Shenzhen and Hong Kong on opening up new links between the two sides, dated 30 April 1982 (HKK 091/1, folio 20).

5. If this course were followed we could reasonably defend ourselves against charges that we were divesting ourselves of British territory without an Act of Parliament, on the grounds (i) that the transfer was de minimis; (ii) that there was no transfer of sovereignty (see para 1 above); and (iii) that for one or both of these reasons no legislation was required. The first ground would be sufficient in itself to avoid amending the 1898 Order in Council.

6.

If on the other hand this result were not regarded as satisfactory, and we wished to maintain that the realignment of the river had not altered the boundary, we and the Chinese could either continue to patrol up to the old boundary (accepting the practical inconvenience involved), or reach some agreement with them to preserve the old boundary. The latter could involve a delicate negotiation, particularly if the central Chinese government were to be involved. One possibility however would be to get the working group set up under the 1982 agreement to record that by realigning the river the two sides did not intend to change the areas falling under their respective administrations. But if any further agreement is to be negotiated with the Shenzhen authorities Hong Kong should show it to us in draft at an early stage, and before it is too late for us to suggest changes.

17.

CODE 18-77