16 April 1992
Michael Fielder Esq
HKC
DTP, IAD
181/20
Foreign & Commonwealth
Office
PA
Ъ
London SWIA 2AH
Dear Michael,
см
HONG KONG/VIETNAM AIR SERVICES AND OTHER ARRANGEMENTS
S
Many thanks for your letter of 7 April, enclosing Martin Glass's helpful minute on this subject.
1.
2.
Having sought the views of our legal advisers, we agree with Martin's conclusions. I think it might be simplest if we were to send Tony Galsworthy and John Wakeling a copy of Mr Glass' minute together with the enclosed note from Miss Brooks. It is important that HKG make a decision about which interpretation of "provisional arrangements" they prefer (although Mr Glass's analysis will be hard to
refute).
3.
Do you agree?
PF Ricketts
RB3ACE/1
JRB
ever
Peter
1
FROM:
Miss S Brooks
Legal Counsellor
DATE:
10 April 1992
Mr Bunte
CC:
Mr Grainger,
lo compider how
Assistant Legal Adviser
www
Mr Ricketts
should put this useful thinking to Wang Kang
Hong Kong Department
HONG KONG/VIETNAM AIR SERVICES AND OTHER ARRANGEMENTS
1. I agree with
the points which are set out in Mr Glass's minute to Mr Fielder of 6 April 1992 on which you asked me for comments. I have had a very helpful discussion with Mr Glass, and it may be useful if I put down on paper the conclusions that we reached. We discussed in particular the meaning of "arrangements" in the Joint Declaration, paragraphs 119 to 126.
2.
We concluded that the word 'arrangements' is used in three different ways in those paragraphs.
•
(a) Firstly, there are 'provisional arrangements'. References to provisional arrangements are contained in JD121, 122, 124 and 126. Provisional arrangements
would appear
to cover air service agreements which are being provisionally applied. There is also the question whether in addition they include arrangements which are free-standing and non-binding (by "non-binding" I mean they are not agreements). I discuss this at paragraphs 3 and 4 below. The Hong Kong/Vietnam air services arrangements would appear to be of this second kind.
(b) There is also a reference in JD124 to
'arrangements concerning the implementation of ... air service agreements'. These arrangements are non-binding and they contain commercial details which are needed to flesh out an air service agreement, such as the number of services to be operated, and the type of aircraft to be used. The Hong Kong air service agreements contain open route schedules; in other words, they do not specify the points which will be served by airlines. This is also dealt with in the arrangements implementing the agreements (usually described as confidential Memoranda of Understanding). It is these types of arrangements which are at issue in
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3.
the context of Taiwan services. It is not in the interest of Hong Kong airlines that commercial arrangements set out in the confidential Memoranda of Understanding should be revealed to the Chinese, not least because such information is likely to filter through to mainland Chinese airlines and give them a commercial advantage over Hong Kong airlines.
...
(c) JD119 also refers to arrangements'. It provides that under specific authorisations from the Central People's Government 'all such ... arrangements may be renewed or amended with the rights contained in such
previous arrangements being as far as possible maintained'. The provision on renewal has been narrowly interpreted by the Hong Kong Government (rightly, in my view) to cover only agreements and arrangements which are time-limited and which would expire but for their renewal, and not all agreements and arrangements which run on after 30 June 1997. this paragraph, the word 'arrangements' is used to describe instruments containing rights. The word is normally used for instruments which are non-binding and fall short of being a treaty, although it can be used for instruments containing rights. In the context, it would seem to cover only air services agreements which are being provisionally applied and not in addition free standing and non-binding arrangements referred to in paragraph 2(a) above.
The big question mark concerns the free standing, non-binding type of arrangements referred to in paragraph 2(a) above. If we interpret those as included in the term 'provisional arrangements', that means that they are excluded from JD119 and cannot be renewed if time limited or amended after 1997 but they are covered by JD 121, 122, 124 and 126. If such arrangements are covered by JD121 and 122, new ones may be negotiated and concluded after 1 July 1997 under specific authorisations from the Central People's Government and it would also bring them within the umbrella provision of JD1 22 which provides that all scheduled air services not operating to, from or through mainland China shall be regulated by air service agreements or provisional arrangements.
4. If, on the other hand, we wish to argue that this type of arrangement does not fall under the term 'provisional arrangements', the consequence is that such arrangements may not be negotiated and concluded after 1 July 1997 under JD121 and indeed, because scheduled air services after 1 July 1997 may only be regulated by air services agreements or provisional arrangements (JD122), they could only be used for chartered air services arrangements. (In practice, I believe, they are not used for chartered air services.) The
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