Pearls and Irritations

In 1949, therefore, Zhou Enlai, who was simultaneously China’s first premier and foreign minister, ordered a review of the treaties entered into by previous Chinese governments. The Ministry of Foreign Affairs then established the Committee of Treaties (now the Department of Treaty and Law), and it examined the circumstances under which treaties had come about since the time of the Qing Dynasty. The committee concluded that, apart from certain clauses that required further consideration, none of the treaties could be fully recognised or were worth revising for application in modern China.

Over the years, the bilateral treaties that the UK, and other foreign powers, imposed on China in the 19th century became known, for obvious reasons, as “unequal treaties”. They were coercive or predatory in nature, and devoid of genuine consent. As the historian, Wang Dong, explained in 2005, China considered those treaties to be unequal “because they were not negotiated by nations treating each other as equal but were imposed on China after a war, and because they encroached on China’s sovereign rights”.

A key principle of international law has always been the equality of states, and a treaty obtained in defiance of this and without the necessary reciprocity is worthless. Indeed, after the United Nations Special Committee on Decolonisation was established in 1961, to promote self-governance among colonies, the UN General Assembly decided in 1966, by a vote of 99-5, that Hong Kong, like Macao, was outside its ambit. Although the Treaty of Nanking had ceded Hong Kong to Britain in perpetuity, the committee recognised that it still belonged to China, and that there was, therefore, no colony requiring of self-determination or independence.

This was after the committee had accepted the submission from China’s then-representative that “the settlement of the questions of Hong Kong and Macao is entirely within China’s sovereign right and does not fall under the ordinary category of ‘Colonial Territories’ ”, and this meant it was, therefore, none of its business.

This, of course, begs the question of why modern China, as sovereign, did not simply demand the immediate return of Hong Kong after 1949. Why, that is, did it wait until 1997, the date when the 99-year New Territories lease imposed on China by another unequal treaty, the Second Convention of Peking of 1898, expired? The answer undoubtedly lies in enlightened pragmatism, in the sense that China decided not to rush things, but to wait until the time was right. Even then, it took the view, with obvious prescience, that it would not simply take Hong Kong back unconditionally, as was its right. Its leaders, including Deng Xiaoping, decided instead to negotiate with Britain the terms of its return, and it did this, at least in part, to reassure the local population and the business world; hence the Sino-British Joint Declaration of 1984.

There is, of course, a world of difference between regarding a treaty as legally void, on the one hand, and accepting it de facto, on the other, and this is exactly what China did with Hong Kong. Its sovereignty notwithstanding, it recognised the reality of British administration, bided its time, and chose July 1, 1997, as the right day for the resumption of the exercise of sovereignty over Hong Kong. In the case of Macao, where there was no treaty date to provide guidance, the date of Dec 20, 1999, was chosen, given that was as good a date as any as the 20th century expired and the 21st century beckoned.

With his historical awareness, Patten presumably felt comforted in 1992 when he moved to a BDT rather than what had previously been viewed as a colony, not least because he would have been aware of the pain the “century of humiliation” had inflicted upon China and its people. If so, he is now singing from a different hymn sheet, for reasons that arouse suspicion. Indeed, his latest pronouncements show not only crass insensitivity, but also a love of mischief-making.

Writing in The Times, on June 26, 2022, Patten poured cold water on the notion that Hong Kong, when he arrived in 1992, was simply an “occupied territory”, which is a possible definition of a BDT. He insisted instead, despite Hong Kong having been classified as a BDT since 1983, that he “really was the governor of the colony of Hong Kong from 1992 to 1997”, apparently implying British sovereignty. Quite why he trotted out this old canard many years after Britain had distanced itself from colonial pretensions is anybody’s guess, although one reason may lie not a million miles away from the imminent release of his Hong Kong Diaries, on July 1.

Eager to drum up publicity, Patten is once again reverting to type, and showing himself to have been an old-fashioned colonialist all along. This, of course, sheds light on his ongoing provocations of Beijing in the run-up to 1997, when he behaved like the proverbial bull in a China shop, insulting the sovereign at every turn. Indeed, by now misrepresenting the past and seeking again to needle China, he reveals just how much he has in common with those of his forebears who abused it in the 19th century. If he feels this is a price worth paying to flog some books, then good luck to him. His prospective readers, however, will be hoping that his diaries are not as badly flawed as his latest pronouncements.