TNAG-2790-FCO40-4029-Future-of-Hong-Kong-1993 — Page 166

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Future Cen

(where previous papers are)

Jill Barrett

2.

Assistant Legal Adviser

62

014/1

RECEIVED

OTRY

FROM:

2€

1993

DESK C INDEX

REGISTRY

K174 270 3381

MA Adion Taken

DATE:

23 July 1993

Mr Bunten

HKD

KOWLOON WALLED CITY

35

1. You asked for advice on the release into the public domain of various papers relating to British jurisdiction in the Walled City, situated in the New Territories.

2. The City is part of the land leased to the UK by China under the Convention of 1898. Paragraph 2 of the Convention created an exception to sole British jurisdiction in the rest of the leased area by providing for continued exercise of jurisdiction by the Chinese there, "except so far as may be inconsistent with the military requirements for the defence of Hong Kong". The papers reveal that in 1948 the Law Officers took the view that, in terms of international law, the British case for having excluded Chinese jurisdiction within the City was weak. Your concern is that if these papers were now released, it might create difficulties for the Hong kong Government in their current efforts to deal with compensation for the occupants of the City.

3. Assuming that our case for continuing to deny Chinese officials the right to exercise jurisdiction in the City remained weak in 1985, the question is how the legal position under the Convention of 1898 was affected by the entry into force of the Joint Declaration.

4. The Joint Declaration does not expressly repeal or make any reference to the Convention. (This was of course because the Chinese regard it as one of the "unequal" treaties and therefore invalid). Article 30 of the Vienna Convention on the Law of Treaties provides that where States are parties to successive treaties relating to the same subject-matter, but the earlier one is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. Article 59 provides that:

"...A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or

(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time..."