SUMMARY OF SECOND PART OF FAC SESSION ON HONG KONG 3 NOVEMBER
1993
PANEL OF LAWYERS: Peter Slinn, Head of Law Dept, SOAS
Perry Keller, Law Dept, Manchester University Peter Duffy, Barrister
Harris
Status of documents?
Duffy
Keller
Slinn
Canavan
Slinn
Stanley
Duffy
Keller
Agree with FCO. JD is a treaty. Article 2 (1) (a)
Vienna Convention. Fact that it is not called a treaty not decisive. BL linked into Chinese obligations in JD. An exchange of letters can amount to a treaty, but in this case the context and content show these are not.
Agree with first two points (on JD and BL). Exchange - could be binding agreement
form not
important. There was agreement on direct elections but not in issue. FCO position on reason why these exchanges are not a treaty is weak on a couple of points close to treaty but not one.
-
Agree JD is binding
BL related to JD
-
1990 exchange shows drafting of BL purely a matter for Chinese.
Unlikely Chinese would have considered themselves bound internationally to draft BL in certain way. Therefore the exchange not likely to embody an international agreement as far as either side was concerned.
Disputes could they be referred to the ICJ?
Endorse Chamberlain's remarks on ICJ. Would add that UK is the only one of P5 which accepts compulsory jurisdiction of ICJ. China therefore not out of line. China not likely to accept independent international adjudication in this context.
Proposals
are there any which breach JD/BL?
Need to be assessed against framework of mutual rights and obligations.
JD says LegCo to be constituted by elections. None in 1984. Transition needed. JD para 4 responsibility to administer HK. Proposals fit within that framework. Reasonable steps within discretion of HMG's admin responsibility. Give effect to letter and spirit of JD.
UK
Chinese have obligation to co-operate but does