CONFIDENTIAL
317
Mr Shite
921/4
PA
Mr Humy's In
11/AKCISI 1
Ms Marsden HKD
a
HONG KONG AND THE IVORY TRADE
From: D M Edwards
Legal Advisers
K159
270 3058
Date: 15 November 1989
CC: Mr Paul, HKD
(313
Mr Rankin, Legal Advisers Mr Evans, MAED
(without enclosures)
On the first
1. Please refer to your minute of 15 November. question you raise, namely whether HMG would be liable to compensate Hong Kong ivory traders as a result of the recent CITES decision to ban all trade in ivory, I have concluded that the chances of such litigation succeeding in the UK would be very small indeed.
2.
Under the scheme provided for in the relevant legislation which gives effect to the Convention (the Endangered Species
(Import and Export) Act 1976) the Secretary of State has power (under Section 3), by order, to make such modifications in the schedules to the Act to give effect to any amendment of the Convention made in pursuance of its provisions. So, in the present case, the Secretary of State (for the Environment?) will, by statutory instrument laid before Parliament in accordance with Section 11 of the Act, give effect in UK law to the ban on ivory trading which results from the transfer of elephants from Appendix II to Appendix I of the Convention. I cannot see how Hong Kong ivory traders could hope to succeed in an action against HMG on the basis that this particular piece of subsidiary legislation (made by the Secretary of State to give effect to an international legal obligation) had resulted in their suffering a loss. In my search for a possible cause of action on which such traders might rely I have considered, in particular, whether we might be vulnerable to an action in tort for unlawful or unreasonable interference in a contract (I assume that Hong Kong ivory traders have entered into many contracts for the disposal of their ivory goods). I have concluded that such an action would be most unlikely to succeed. The action we are taking to give effect to the CITES decision is neither unlawful (to the contrary) nor unreasonable.
3. Thus, while litigation against HMG (or the Crown) cannot entirely be excluded and the result of litigation is never completely predictable, my view is that in the unlikely event of an action being brought the chances of its succeeding would be very small.
4. On the question of entering a reservation for Hong Kong you may find it helpful if I describe the procedures laid down for this purpose in the CITES Convention. Article XV (1) (c) provides
CONFIDENTIAL
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