One Country, Two International Legal Personalities: The Case of Hong Kong

Chapter 2. Issues of Jurisdiction

Chapter 2 Issues of Jurisdiction Hardly astonishing is the fact that international law, which contains few clearly defined rules regarding the jurisdictional competence of states, 1 also offers limited guidance in respect of the nature and extent of jurisdiction exercised by non-state entities such as Hong Kong. The argument may nonetheless be made that, given the territory’s ‘international legal personality’ and prominence in the international arena, jurisdictional issues affecting Hong Kong are best examined in the context of international — as distinct from municipal — law. TERRITORIAL฀JURISDICTION To฀what฀extent฀is฀Hong฀Kong฀guaranteed฀a฀right฀to฀exercise jurisdiction฀over฀its฀territory฀free฀from฀interference? Could฀Chinese฀criminal฀jurisdiction฀be฀extended฀to฀acts committed฀in฀Hong฀Kong? It is reasonable to assert that Hong Kong’s possession of the factual ‘stately’ attributes of defined territory and permanent population implies jurisdictional competence ‘over all persons and things within its territorial limits and in 1 As stated by Sir Gerald Fitzmaurice: ‘It is true that under present conditions international law does not impose hard and fast rules on states delimiting spheres of national jurisdiction in such matters . . . but leaves to states a wide discretion in the matter. It does, however, (a) postulate the existence of limits — though in any given case it may be for the tribunal to indicate what these are for the purposes of that case; and (b) involve for every state an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by the courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another state.’ Barcelona Traction Case [1970] ICJ Reports 3. 44 One฀Country,฀Two฀International฀Legal฀Personalities:฀The฀Case฀of฀Hong฀Kong all cases, civil and criminal, arising within these limits’. 2 By virtue of what is known as the ‘territorial principle’ of jurisdiction, Hong Kong is entitled under international law3 to subject to its legal system incidents occurring in, or persons within, its territory. Such competence is equally applicable to the HKSAR government which is ‘vested with executive, legislative and independent judicial power’4 over the SAR. Geographical scope For jurisdictional purposes, ‘Hong Kong territory’ is generally regarded as consisting of the land mass, internal waters (including ports) and their beds, territorial sea and its subsoil and the air space above all the former. 5 Under local law,6 the term ‘Hong Kong’ (or alternatively the ‘Colony’), when used in statutes or public documents, denotes ‘the area of land and the area [waters] of Deep Bay and Mirs Bay lying within [the specified boundaries] 7 and the territorial waters appertaining thereto’. No attempt is made to demarcate the HKSAR territory in the Sino-British Joint Declaration, which merely refers to the ‘Hong Kong area (including Hong Kong Island, Kowloon and the New Territories)’. 8 2 Lord Macmillan in Compania Naviera Vascongado v SS Cristina [1938] AC 485 at 496– 7 (alluding to essential attributes of statehood). 3 Leaving aside constitutional or other constraints which may affect the prescriptive powers of the legislature in Hong Kong. See in this connection, Peter Wesley-Smith, ‘Legal Limitations Upon the Legislative Competence of the Hong Kong Legislature’ (1981) 11 Hong Kong Law Journal 3; William S. Clarke, ‘The Constitution of Hong Kong and 1997’ in Y.C. Jao et al., eds., Hong Kong and 1997: Strategies for the Future (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1985) 215. 4 JD, Art 3(3). 5 See B.H. Oxman, ‘Jurisdiction of States’ in R. Bernhardt, ed., Encyclopedia of Public International Law (Amsterdam: North-Holland Publishing, 1981-), Instl.10 (1987) 277. 6 Sec. 3, Interpretation and General Clauses Ordinance (Chapter 1, Laws of Hong Kong 1989 ed.). 7 Ibid., Schedule 2. 8 JD, Art 1. Interestingly, a reference to the ‘New Territories’ (comprising the area north of Kowloon up to the Shumchun river, as well as 235 islands off the coast, all of which were included in the 99-year Lease of 1898 granted to Britain by China) is omitted from the territorial description of Hong Kong under the ‘Decision of the National People’s Congress on the Establishment of the Hong Kong Special Administrative Region’ (adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990), which states: ‘that the area of the Hong Kong Special Administrative Region covers the Hong Kong Island, the Kowloon Peninsula, and the islands and adjacent waters under...