CO537-3706 — Page 11

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Mr. Seel's second point raises what to my mind is a fundamental objection to both the Ambassador's draft and that of the Department. have not seen these papers before and have not had time to study them, but I understand that the whole question at issue is whether we or the Chinese have jurisdiction in the Old City of Kowloon. Any solution would be highly unsatisfactory, therefore, if it did not determine that question, so that we should know:-

(a) Whether the present law of Hong Kong is to

continue to apply or the law of China to be substituted;

(b) by what authority the future law, including legislation amending the present law, is to be made; and

(c) how the law is to be administered and enforced.

Both drafts deal only with (c). It might possibly be argued that in the absence of express provision to the contrary the law which defacto hit her applied (presumably the Hong Kong law) is to continue in force, but the argument would not be strong and both drafts are devoid of even an implication which could answer point (b), which is of great importance.

1

In matters such as the Criminal Law it is clearly necessary to know whether future Hong Kong. Ordinances would apply. And, on a point of detail, we do not want the Garden of Remembrance to be used as an asylum by criminals, or to be obliged to adopt extradition proceedings to secure the surrender of offenders.

I am not really in a position to make a con- structive proposal, but for what it is worth I make the following suggestion as something to work on:-

a

"Since the area in question is situated within

the Colony of Hong Kong, it is agreed, as matter of convenience, that the existing laws of the Colony

continue to apply, and that future laws of the Colony may be extended, to the Garden of Remembrance; and that the maintenance of law and order ́statta be under- taken by the Colonial Authorities who will also provide facilities in respect of sani- tation and lighting7 The will in these matters consult the Committee of Custodians as may be necessary.

It is not quite clear what powers the Committee would have for the purposes of "safe+keeping and maintenace" but by applying the general law of Hong Kong this document would make more apparent what I gather is the intention, that the Committee should

I am not sure have only the authority of custodians. whether they should be enabled to make bye-laws, but if so it would be advisable to define the extent of their power in this respect, especially as regards imposition of penalties.

One further point a mere unsigned document

in the form of a public announcement is not a usual method of establishing international legal rights and obligations, but if it is accepted in satisfactory form by both Governments I should not wish to object.

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