Mr Fisher,
Fisher
Pa.
HKB OGO/
обо
RECEIVED INDUS
10 UL 1990
Y
HKD
From:
D H Anderson
Legal Advisers
Date:
21 June 1990
CC:
Mr Barton, AMD
Ms Barrett, Legal Advisers
You asked for my views as legal adviser to AMD on the letter from Hong Kong dated 4 June.
1.
2.
First, having regard to the geographical position of Hong Kong it seems unlikely in the extreme that any foreign ship would pass through Hong Kong waters unless it was intending to call at the port. I advised AMD some weeks ago that were the Hong Kong authorities to refuse entry to the "Goddess of Democracy" complaint by the flag State to the effect that our refusal was contrary to international law could not be sustained in the circumstances which would obtain. Accordingly, it seems very unlikely that the question at issue would ever become an actual one.
3. Should, nonetheless, the situation arise whereby a ship on passage from Singapore to Taiwan passes through Hong Kong waters without paying a call, we could say that the passage was prejudicial to the peace, good order and security of Hong Kong only if the vessel engaged in threatening or improper activities whilst it was in Hong Kong waters. A suspicion that the vessel was intending to engage in activities of which we do not approve after it had left Hong Kong waters would not provide a basis for denying rights of passage. Were it otherwise coastal States would be able to deny passage on all manner of grounds in the case of all manner of ships and very little would remain of the right of innocent passage. This question came up at the First and Third UN Conferences on the Law of the Sea. The outcome was language which makes clear that the test of innocence applied to activities of a ship whilst it is in the territorial sea, excluding activities on the high seas whether before or after entry into the territorial sea. Article 19 (2) of the UN Convention on the Law of the Sea of 1982 is quite clear in this regard.
Different considerations apply to the question of entry into port.
4.
Antwanson
D H Anderson
See 141
39