TNAG-0243-FCO40-279-Conduct-of-Hong-Kong-commercial-relations-1973 — Page 114

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Mr. G.F. Kinnear

(Hong Kong Dept.)

I have discussed this with Mr. Rushford. We have hitherto been under the impression that the draft despatch was to be a domestic and private exchange between ourselves and the Governor of Hong Kong. If this had been the case, of course, provided what we said was correct, the presentational aspect would not have been so important. However, from what the

Governor has said in his telegram No. 525 it seems clear that the proposed despatch is to be published in a way which will presumably make its text available not only to the Hong Kong public but also to third States who may be interested in concluding agreements with Hong Kong on matters concerning non cotton textiles.

2. In these circumstances, we believe that consideration should be given by the department to the preparation of two despatches, one for publication and the other only for internal consumption. The first of these should follow very closely those previous entrustments that have been made to dependent territories and which Mr. Steel has averred to in his minute of 11 June last. We consider that it is of some importance that precedents in this area should be closely followed so that we are not exposed to the argument (inter alia) that any differences between this entrustment and past ones carry important legal consequences. If our recollection is correct, we do not think that the despatch for publication would be either very long or complicated.

3. If, from a policy point of view, the department consider that it is also necessary to explain the detailed situation to the Governor then a second private despatch can be sent to him. It really would not matter too much what went into this despatch provided, of course, it was correct. I would suggest that it could follow closely the draft sent to Hong Kong under telegram No. 515.

4.

In the circumstances I will not go into the Governor's telegram No, 525 in detail but, even although we might be able to accept something on the lines of the Governor's suggestion at the end of his para. 3(3), I could not accept the arguments he uses to back it. The international legal position remains as Mr. Steel advised in his minute of 11 June, namely, that when Hong Kong enters into international agreements under with third States, they do so as our agents and that if they default on the agreement it is open to the third State to look to the U.K. as principals. In international law Hong Kong does not exist as a separate legal person.

5. In framing the draft published despatch it would probably be advisable to cover the existing entrustment in respect of cotton textiles as well as the proposed entrustment, so that the published despatch is comprehensive.

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