Mrs Priest, HKD
CHKD
CONFIDENTIAL COVERING SECRET
ön 19/3.
сп
Reference.
HKK 040/24
HKK 040/24
20
HONG KONG: GATT
1.
The views of GATT's legal adviser, reported in paragraph 5 of UKMIS Geneva's teleletter of 11 March, are on broadly the same lines as my own advice, recorded in FCO telegram to Hong Kong No 509 of 20 March 1984. There are however some differences of detail, and I have the following comments on his three points
2.
(a)
(b)
(c)
A
اره ما
The GATT draws no distinction between "de jure" and "de facto" parties, we should not accept that any exists, or deposit any document with the Director- General which uses those terms. Action by us before 1997 under Article XXVI(5)(c) ought to result in Hong Kong being "deemed to be a contracting party."
'B
I see no need for, but no objection to, the Hong Kong Government depositing a statement, referring to the UK's declaration and confirming that it wishes to be deemed a contracting party in accordance with Article XXVI(5)(c). If it will smooth our path with the secretariat there is something to be said for following this course.
It might be difficult to get the PRC to refer expressly to the terms of our declaration under Article XXVI(5)(c), given the underlying dispute between us as to sovereignty over Hong Kong. We must take particular care to draft in language which is effective for GATT purposes, is consistent with the language of the Joint Declaration, and is also neutral with regard to the sovereignty issue.
I think that our next task should be to draft declarations by the UK, the Hong Kong Government and the PRC.
3. In order to enable us to draft the UK declaration, in terms which take account of the special circumstances of Hong Kong but without departing any more than necessary from earlier precedents, I think we should obtain a copy of a recent routine communication of the kind referred to in paragraph 5(a) of the teleletter. I shall be interested to see whether the latter takes account of the fact that the GATT is not in force (if my recollection is correct) and that it is only being provisionally applied in accordance with the Protocol of Provisional Application and various Protocols of Accession. If we can find a suitable precedent to support such a course I think it would be better if we could avoid introducing this complicating factor into our draft declarations, relying perhaps on Article XXXII(1).
4. With regard to your paragraph 3, please see my views as recorded in paras 2 and 3 of FCO telno 509.
Ұ. Виного
F Burrows
Legal Counsellor
19 March 1985
cc: Mr Warren, ECD(E)
CODE 18-77
CONFIDENTIAL COVERING SECRET