GRS 1200
CONFIDENT HAL
FM HONG KONG
TO PRIORITY FCO
TELNO 2703
OF 20074OZ AUGUST 86
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YOUR TELNO 1299 OF 11 JULY: LO CONVENTION NO-26: CREATION OF
MINIMUM WAGE-FIXING MACHINERY
WE SEE SOME FORCE IN THE LINGUISTIC REASONING 'N PARA 2 OF TUR.
HOWEVER, WE FEEL THAT SUCH REASONING FAILS TO TAKE ACCOUNT OF VARIOUS FACTORS IN RELATION TO ARTICLE 35(4) OF THE LO CONSTITUTION. WE
ARE STRONGLY OF THE OPINION THAT ARTICLE 35(4) ENABLES HONG KONG
TO HAVE CONVENTIONS APPLIED TO IT BY THE UK EVEN WHEN THE UK HAS
NOT RATIFIED (OR HAS DENOUNCED) A PARTICULAR CONVENTION. OUR
ARGUMENTS ARE AS FOLLOWS :-
(A) ARTICLES 35(1) AND (2) OF THE CONSTITUTION EXPRESSLY REQUIRE
RATIFICATION BY THE MEMBER STATE, BUT BOTH THOSE PROVISIONS RELATE TO CONVENTIONS THE SUBJECT-MATTER OF WHICH IS NOT WITHIN THE SELF-
GOVERNING POWERS OF THE NON-METROPOLITAN TERRITORY. ARTICLE 35(4)
ON THE OTHER HAND MAKES NO MENTION OF RATIFICATION, AND RELATES TO CONVENTIONS OF WHICH THE SUBJECT-MATTER IS WITHIN THE SELF-
GOVERNING POWER OF THE NON-METROPOLITAN TERRITORY. IT IS ARGUABLE
THAT ARTICLES 35(1) AND (2) AND ARTICLE 35(4) ARE PROVIDING DIFF-
ERENT MECHANISMS FOR DIFFERENT CASES.
(B) THIS VIEW IS REINFORCED BY THE FACT THAT ARTICLE 35(3)
S REPEATED WITH VARIATIONS IN ARTICLE 35(7). THE LATTER WOULD BE
SURPLUSAGE F THE FORMER COVERED THE GROUND IN RESPECT OF
MODIFICATIONS.
(C) ARTICLE 35(5) WOULD BE MEANINGLESS IF IT APPLIED ONLY TO
CONVENTIONS WHICH HAVE BEEN RATIFIED BY A MEMBER STATE. AN
#INTERNATIONAL AUTHORITY CANNOT RATIFY AN IL CONVENTION AND IT MUST
THEREFORE BE CONTEMPLATED THAT A DECLARATHON MAY BE MADE BY SUCH
AN AUTHORITY IN RESPECT OF ANY IL CONVENTION, RATIFIED OR NOT.
(D) THE REFERENCES IN ARTICLES 35(6) AND (8) TO PARAGRAPHS (4) AND
(5) RENFORCE OUR VIEW EXPRESSED IN (A) ABOVE THAT ARTICLE 35
PROVIDES TWO SEPARATE MECHANISMS FOR THE APPLICATION OF L
CONVENTIONS TO NON-METROPOLITAN TERRITORIES. WE CONSIDER THAT
PARAGRAPHS (1) TO (3) REQUIRE RATIFICATION OF THE CONVENTION AND APPLY WHEN THE CONVENT HON IS NOT WHITHIN SELF-GOVERNING POWERS,
WHILE PARAGRAPHS (4) TO (8) DO NOT REQUIRE RATIFICATION BUT ONLY
APPLY WHEN THE CONVENTION HIS WITHIN THE SELF-GOVERNING POWERS.
2. THE EXISTENCE OF TWO MECHANISMS, ONE REQUIRING RATIFICATION, THE OTHER NOT, HS IN OUR VIEW SUPPORTED BY APPENDIX TO THE ILO
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