1
5. Up to now, we have I think always assumed that Hong Kong could acquire a GATT relationship to the UK under the terms of Article XXVI (5) (c) if she were granted "full autonomy in the conduct of her external commercial relations and of the other matters provided for in this Agreement" and if we sponsored her by a declaration to this effect; in this case Hong Kong, in the words of AXXVI (5) (c), would "be deemed to be a contracting party". We have assumed that the only difficulty about
this course would be the political difficulties in the way of Hong Kong obtaining "full commercial autonomy". At our recent meeting, however, Mr Haddon-Cave took the line that in his view Article XXIV (1) was overriding and would make it impossible for Hong Kong to acquire GATT rights vis-a-vis the UK even if commercial autonomy were granted. It is true that this paragraph prevents the creation of GATT rights and obligations between a metropolitan power and a dependent territory in respect of which GATT has been accepted "under Article XXVI" (there is no reference in Article XXIV (1) to any specific paragraph of Article XXVI); it is also true that if Hong Kong were granted "full commercial autonomy" she would remain a politically dependent territory, and that it would be under Article XXVI that she was "deemed to be" a contracting party • Mr Haddon-Cave interprets these cross-references to mean that the proviso in the latter part of Article XXIV (1) would continue to apply to the relationship between Hong Kong and the UK even if Hong Kong fulfilled the requirements of Article XXVI (5) (c); and he deduces further that there is no way of providing for a GATT relationship between the UK and Hong Kong other than full independence, which is not a practical possibility. It seems to me, on the other hand, that the governing factor in the proviso to Article XXIV (1) is the reference to "application ......by a single contracting party"; on this interpretation, once Hong Kong had passed through the Article XXVI (5) (c) hoop, there would be two contracting parties, and a GATT relationship.
6. There are in the nature of things no precise precedents against which to set the peculiar relationship of Hong Kong and the UK. Such precedents as there are, however, and the drafting history as far as we have been able to dig it out, seem to favour the argument that a declaration under Article XXVI (5) (c) would give Hong Kong rights vis-a-vis the UK. The following paragraphs attempt to summarise these precedents and drafting history.
7. The Article XXVI (5) (c) provision that customs territories having full autonomy in the conduct of the matters dealt with by the GATT can be "deemed" to be contracting parties was drafted to cover the position of Burma, Ceylon and S Rhodesia (all of which at that time were under the UK's control) countries which in future were in a similar situation.
and of any other The UK had assumed that she would accept the Agreement on their behalf but other members of the working parties suggested that these countries should sign the agreement and upon entering into force of the agreement should become contracting parties in their own right on a footing of equality with completely autonomous states, parties to the Agreement. The sub-committee set up to consider the mechanics and proprities of such a course of action subjected the UK to a constitutional quiz on the de jure and de facto independence in trade matters of these countries. You may find it useful to see the attached document which sets out the sort of points on which the committee members wished to be satisfied and the answers the UK gave. In the discussion of these answers and the committee report there is no suggestion whatsoever that these countries would be other than full contracting parties. There was no reference at all to any qualification on the relationship between the mother country and these GATT contracting parties; and it is likely that there would have been if this had been intended as the provisions of XXIV (1) were being considered at the same time. The sub committee's
No comments yet.
Private notes are available after approval.