CONFIDENTIAL
015072
MDLIAN 6778
4.
WE HAVE THOROUGHLY EXAMINED OUR EXISTING LEGISLATIONS RELATING TO THE GRANTING OF PRIVILEGES AND IMMUNITIES TO CONSULATES-GENERAL AND INTERNATIONAL ORGANISATIONS IN HONG KONG (CAP 259 AND CAP 190), AND CONCLUDED THAT CAP 190 IS THE ONLY EXISTING VEHICLE AVAILABLE FOR GRANTING PRIVILEGES AND IMMUNITIES TO THE EC OFFICE. WE RECOGNISE THAT IT DOSE NOT ENABLE US TO GIVE AN ASSURANCE TO THE COMMISSION THAT THE EC DELEGATION COULD BE TREATED ON THE SAME LEVEL AS THE EXISTING CONSULAR MISSIONS. BUT THEN, GOING BEYOND CAP 190 WOULD HAVE ITS DIFFICULTIES.
5. THE GRANTING TO THE EC OFFICE IN HONG KONG PRIVILEGES AND IMMUNITIES EQUIVALENT TO THOSE ENJOYED BY THE CONSULATES-GENERAL UNDER CAP 259 WOULD REQUIRE NEW PRIMARY LEGISLATION. THIS WOULD GIVE RISE TO ALL THE DRAWBACKS IDENTIFIED IN PARAGRAPH 8 OF OUR TELNO 60. IT WOULD ALMOST CERTAINLY ATTRACT CHINESE ATTENTION AND COULD, THEREFORE, RISK US BECOMING EMBROILED IN A CONSULTATION PROCESS WITH THE CHINESE SIDE WITH NO PROSPECT OF A QUICK SOLUTION. WE ENTIRELY AGREE WITH YOUR VIEW THAT IT IS NOT THE BEST MOMENT TO OPEN UP A NEW ISSUE OF THIS KIND WITH THE CHINESE.
6.
BY CONTRAST, UNDER EXISTING LEGISLATION (CAP 190), WE CAN GRANT PRIVILEGES AND IMMUNITIES TO THE EC OFFICE RELATIVELY QUICKLY WHICH WILL APPLY UP TO 30 JUNE 1997. SUCH ACTION WOULD NOT PRECLUDE THE EC ITSELF, PERHAPS WITH OTHER INTERNATIONAL ORGANISATIONS AND CONSULATES-GENERAL, SEEKING A SIMILAR OR ENHANCED STATUS FROM THE PRC AUTHORITIES NEARER TO 1997. THIS COULD THEN BE RAISED AS A GENERAL ISSUE WITH THE CHINESE RATHER THAN A PARTICULAR CASE FOR ONE ORGANISATION.
7. ON THE QUESTION OF THE POUCH (BAG), ARTICLE 35 OF THE VIENNA CONVENTION FOR CONSULAR RELATIONS, WHICH IS GIVEN THE FORCE OF LAW IN HONG KONG BY CAP 259, PROVIDES FOR THE FREEDOM OF COMMUNICATION OF CONSULAR POSTS, INCLUDING THE BAG, FOR ALL OFFICIAL PURPOSES, AND THAT THE CONSULAR BAG SHALL BE NEITHER OPENED NOR DETAINED. CAP 190 DOES NOT OFFER SIMILAR PROTECTION. HOWEVER, IN PRACTICE, IT SHOULD NOT BE A PROBLEM FOR THE EC OFFICE AND AN INFORMAL ASSURANCE OF INVIOLABILITY COULD BE EXTENDED TO THE EC OFFICE.
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8. OUR STRONGLY PREFERRED COURSE THEREFORE REMAINS THAT SET OUT IN OUR TELNO 60. AS WE EXPLAINED, THAT COURSE, WHICH WILL INVOLVE PRESSING AHEAD WITHOUT FORMAL CONSULTATION WITHIN THE JLG, CARRIES WITH IT CERTAIN RISKS OF A NEGATIVE CHINESE
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