From:
CONFIDENTIAL
A J Cragg, Head of Defence Secretariat Division 5
HKK 341 3
24
MON
WE Quantrill, Esq
MINISTRY OF DEFENCE
Main Building, Whitehall, London SWIA 2HB'
Telephone (Direct Dialling) 01-218 3048
(Switchboard) 01-218 9000
Hong Kong and General Department Foreign and Commonwealth Office London SW 1
DESK QTH ** INDEX
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Dear Quantrill,
D/DS5/7/14/75
30 July 1979
see(24A)
26
AMENDMENT TO THE HONG KONG IMMIGRATION ORDINANCE
1. Practically the first topic that crossed my desk today on my arrival to succeed Michael Moss was the revision of the Hong Kong Immigration Ordinance.
2. As I think you are aware from contacts with my staff we were informed last week by the Captain in Charge (CAPIC) Hong Kong that the revised Ordinance contains provision for action to be taken against vessels outside Hong Kong territorial waters with a view to preventing the entry into the colony of unauthorized immigrants. I understand that the FCO Legal Adviser has approved this provision because he considered that it would in practice be administered in such a way as that it would not have undesirable international repercussions and can be justified as an emergency measure of limited duration.
3. Ministers here have seen the relevant telegraphic traffic and are taking a personal interest in this matter. In particular Mr Speed, the Under Secretary of State for the Royal Navy has indicated that he wishes to be in a position to assure the Defence Secretary that the revised Ordinance will not put the Royal Navy at risk of being asked to contravene internationally agreed practice. Our concern is threefold. In the first instance it seems to us that Article 22 of the 1958 Geneva Convention on the High Seas (copy attached) specifically forbids the stopping of foreign merchant ships by a warship on the high seas except in particular very clearly defined instances none of which appear to apply to the case in point. Nor are we clear about the likely effectiveness of Article 37S(2) of the Ordinance as a defence against possible action under Article 22(3) of the Geneva Convention. Secondly, even if our understanding is not a well founded we believe that the advice provided by the Legal Adviser is insufficiently precise to enable us to issue guidance on the conduct of naval vessels in order to achieve the results envisaged by him. Thirdly, as a matter of good administrative principle and practice we do not believe it right for instructions which could have an effect on the Royal Navy to have been issued without full consultation.
4. In all the circumstances we believe that it would be wrong to proceed with the implementation of the revised Ordinance as it effects the Royal Navy pending the resolution of these points.
1
CONFIDENTIAL
As you know