CODE 18-77
Mr Sainty
Hong Kong Department
HKCIOC
ISUSIVE
NISTRY
3 MAY 1990
ORACL
Reference
Tel out
par 52/5
pacsale
2.
t letter to UK DELIME.
HONG KONG: LOCALISATION OF LAWS RELATING TO IMF,
SATION
AND IDA
IBRD, IFC
The answers to the questions posed in Hong Kong Telno 1328 are as follows:-
1.
(A) As far as I can see, no "parts of Section 6" are omitted from any of the Orders. Section 7 is omitted in each of the Orders because it does not relate to a matter on which legislative provision is necessary; rather it is simply an obligation not to discriminate, which we would not do in any event. Just because the Orders are designed to implement certain Articles of the various Agreements does not mean that all Sections of those Articles have to be included in the Orders; in some cases, as with Section 7, this may be unnecessary or inappropriate. Provisions corresponding to Section 7 appear in many international agreements on privileges and immunities, but I am not aware (pace Hong Kong) that they have ever been included in UK legislation; perhaps Hong Kong could tell us which legislation they are referring to.
(B) I agree that, although the phrase mentioned is not defined in the UK legislation, it would be clearer to define it in Hong Kong's localised legislation. As to Hong Kong's specific questions, the phrase does not cover those who are permanent residents in the host State; most modern agreements do, but these do not, probably because they are so ancient. My own view is, therefore, that the phrase does cover British nationals even if not permanently resident in Hong Kong, but not non-British nationals, even if permanently resident in Hong Kong.
(C) I agree with Hong Kong, except with their reasoning as to SI. 1977/825. This Order was made under both the Bretton Woods Agreement Act 1945 and the International Organisations Act 1968, and since the 1968 Act has no provision allowing Orders made under it to be extended to dependent territories, it seems to me that insofar as this Order was made under the 1968 Act (which means Articles 4 to 7, I think) it does not at present extend to Hong Kong. Insofar as this Order amends SI 1946/36, it will fall away with that Order. Thus, I agree with Hong Kong's conclusion that they need do nothing about SI 1977/825, although not the reasoning by which they reached this conclusion.
(D) I do not understand this. Of the persons mentioned in Section 8 of Article IX of the Second Amendment to the Articles of Agreement of the IMF, all are covered by Article 5 of SI 1977/825, except for officers and employees of the Fund who are covered by Article 6 of the Order; thus, Section 8 of Article IX of the Second Amendment is given effect partly by Article 5, and partly by Article 6, of SI 1977/825. Article 7 of
1
/SI