CONFIDENTIAL
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A
GATT ARTICLE XXVI 5(C) THAT HONG KONG POSSESSES FULL AUTONOMY IN
THE CONDUCT OF ITS EXTERNAL COMMERCIAL RELATIONS WHEREUPON HONG
KONG WOULD BE DEEMED TO BE A CONTRACTING (IE FULL) PARTY.
(SEE ALSO PARAGRAPH 15 BELOW).
ASSESSMENT
7. OPTION 1 COULD NOT BE EXERCISED UNTIL THE CHANGE OF
SOVEREIGNTY HAD TAKEN PLACE IN 1997. IT WOULD ALSO DEPEND ON
WHETHER CHINA HAD BY THEN BECOME A MEMBER OF THE GATT. AT THE
PRESENT TIME IT IS IMPOSSIBLE TO SAY WITH CERTAINTY THAT SHE WILL
HAVE DONE SO.
8.
AS FOR OPTION 2, GATT ARTICLE XXXIII IN THEORY PERMITS EITHER
THE UK ACTING BEFORE 30 JUNE 1997 OR CHINA THEREAFTER TO ACCEDE
AFRESH TO THE GATT ON HONG KONG'S BEHALF. HOWEVER, LEGAL EXPERTS
IN THE GATT SECRETARIAT HAVE ADVISED THAT RECOURSE TO ARTICLE
XXXIII IN PRACTICE REFLECTS A PROCEDURE NORMALLY USED BY
INDEPENDENT SOVEREIGN STATES WHICH HAVE HAD NO PREVIOUS
CONNECTION WITH THE GATT. ARTICLE XXXIII HAS ONLY ONCE BEEN USED
BY A DEPENDENT TERRITORY ATTAINING INDEPENDENCE. THIS WAS
TUNISIA IN WHOSE FAVOUR FRANCE HAD ALREADY MADE A DECLARATION
UNDER ARTICLE XXVI 5(C). TUNISIA IGNORED THIS AND PROCEEDED
INSTEAD UNDER ARTICLE XXXIII APPARENTLY BECAUSE THE TUNISIAN
GOVERNMENT DID NOT WISH TO CONTINUE WITH THE TARIFF CONCESSIONS
WHICH FRANCE HAD PREVIOUSLY NEGOTIATED ON ITS BEHALF. NO SUCH
CONSIDERATIONS WOULD APPLY IN HONG KONG'S CASE, AND, UNLESS THERE
WERE OTHER GOOD REASONS FOR DOING SO IT WOULD SEEM POINTLESS TO
PUT THE VIEWS OF THE GATT LEGAL EXPERTS TO THE TEST.
9. A FURTHER CONSIDERATION RELEVANT TO OPTION 2 IS THAT A
TWO-THIRDS MAJORITY OF THE CONTRACTING PARTIES IS NEEDED FOR
ACCESSION TO THE GATT UNDER ARTICLE XXXIII. EVEN ASSUMING THAT
GENERAL SYMPATHY TOWARDS HONG KONG WOULD SECURE SUCH A MAJORITY
(AND THERE MUST BE DOUBTS ABOUT THIS), THE NECESSARY NEGOTIATIONS
WOULD TAKE TIME AND MIGHT NOT SECURE THE DESIRED RESULT. THIS
COULD UNDERMINE CONFIDENCE IN HONG KONG'S FUTURE. FURTHERMORE, IF HONG KONG WERE TO EMBARK ON ACTION UNDER ARTICLE XXXIII, AND THE NECESSARY TWO-THIRDS MAJORITY WERE NOT FORTHCOMING, IT MIGHT BE DIFFICULT TO REVERT TO THE ARTICLE XXVI 5(C) ROUTE. THIS IS
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