20
HKD 406/1
03 MAR 1992
Mr Morris
HKD
FROM:
Miss S Brooks Legal Counsellor
DATE:
6 February 1992
See Tel ons
+
på.
jui/z
11/2
FUTURE CONSULATE-GENERAL IN HONG KONG: PRIVATE TREATY GRANT
1.
We spoke just now about the resumption clause in the private treaty grant (Clause 14). Assuming that the Vienna Convention on Consular Relations 1963 will apply to the Hong Kong SAR, the resumption provision will need to be read in the light of Article 31, paragraph 4 of that Convention. The first sentence of paragraph 4 refers to immunity from requisition. The second sentence is about expropriation. The distinction is that requisitioning is generally for a temporary purpose whereas expropriation is permanent. I attach a photocopy of a relevant extract from the book by Mr Luke T Lee, 'Consular Law and Practice' about requisition and expropriation. It appears that at the time of negotiation of Article 31 the British delegation made a distinction between temporary 'requisition', for example during a national emergency, whereby property would be requisitioned, to be returned subsequently to its rightful owner, and expropriation for purposes of national defence or public utility. In the latter case, the owner would be permanently deprived of the property but compensated. distinction is reflected in the text of Article 31, paragraph 4.
2.
This
I think the resumption clause is in effect an expropriation provision since it allows for the Hong Kong Government, and after 1997 for the Hong Kong SAR Government, to have full power to resume, re-enter upon or re-take possession of all or any part of the lot if required for the improvement of Hong Kong or for any public purpose whatsoever. Upon the exercise of this power, the grantee's tenancy of the land so resumed shall cease and the grantee, shall after the expiration of 12 months notice, give up possession of the land so resumed and the buildings thereon.
3.
The second sentence of Article 31, paragraph 4 provides that if expropriation is necessary for the purposes of public utility, all possible steps shall be taken to avoid impeding the performance of consular functions and for prompt, adequate and effective compensation to be paid to the sending State. Clause 14 allows for twelve months'
AE1ADE