CONFIDENTIAL
4428
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(I) AS DRAFTED, THIS CONFORMS TO VCCR ARTICLE 43, WHEREAS THE
DRAFT CONSULAR AGREEMENT (ARTICLE 7) MODIFIES PARA 2 OF THAT
ARTICLE SO AS TO INCORPORATE THE EXCEPTIONS PROVIDED FOR IN
ARTICLE 31.1(A) TO (C) AND (3) OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS. HOWEVER WE DO NOT THINK DRAFT
UNDERSTANDING NEEDS TO BE MODIFIED IN ORDER TO MATCH DRAFT
CONSULAR AGREEMENT ON THIS POINT.
(II) SINCE VCCR GRANTS THIS SORT OF IMMUNITY ONLY TO CONSULAR
OFFICERS, THIS PROVISION WOULD EITHER GIVE THE CHINA-BASED
OFFICERS IN HONG KONG NOTHING (ON THE BASIS THAT THEY WERE NOT
CONSULAR OFFICERS THIS WOULD BE CONSISTENT WITH THE CHINESE
VIEW ON THE STATUS OF HONG KONG) OR IT WOULD IMPLY THAT THEY WERE CONSULAR OFFICERS (CONSISTENT WITH OUR VIEW, AND WITH VCCR
ARTICLE 5 (D) WHICH LISTS THE ISSUING OF VISAS AS A CONSULAR
FUNCTION). IN ORDER TO TAKE ACCOUNT OF POSSIBLE CHINESE
SUSCEPTIBILITIES, AND TO AVOID HARMING OUR OWN POSITION, WE
SUGGEST TEXT BE AMENDED AS IN MIFT, BY ADDITION OF 'CONSULAR OFFICERS TO PARA 2.(4).
THE
5. WE NOTE THAT UNLIKE THE CHINESE DRAFT (PEKING TELNO 49),
DRAFT IN PEKING TELNO 44 CONTAINS NO PROVISION FOR PERSONAL
PROTECTION EQUATING TO PARA III (1) OF THE MEMORANDUM OF 23
SEPTEMBER 1981. IF THE CHINESE PRESS FOR THIS, WE WOULD EXPECT
ANY PROVISION WHICH WE CONCEDE TO BE MATCHED IN THE CONSULAR
AGREEMENT, WHICH AT PRESENT CONTAINS NO SUCH CLAUSE, DESPITE OUR
EFFORTS TO SEE ONE INCLUDED (APART FROM THE NORMAL PROVISION OF
ARTICLE 40 VCCR, WHICH APPLIES ONLY TO 'OFFICERS').
6.
GRATEFUL FOR BOTH YOUR VIEWS ON THE ABOVE POINTS BEFORE DRAF
IS FINALIZED FOR PRESENTING TO THE CHINESE.
HOWE
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COPIES TO
MR WHOMERSLEY LEGAL ADVISERS
MR BURROWS LEGAL ADVISERS
HKD
N I'D
FED
PCD
MR DONALD
LORD N GORDON LENNOX
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