TNAG-0908-FCO40-1118-Legislation-for-immigration-into-Hong-Kong-1979 — Page 8

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CONFIDENTIAL

29th August 1979

(2)

(3)

(4)

Article 22 applies to foreign merchant ships thus

a) it would seem that there is no problem in

dealing with British ships, but perhaps the position should be checked

b)

it appears not to apply to ships of no nationality

A useful example in this context appears in the case of

'The owner of the M. V. 'Asya' v. A.G. for Palestine' 1948 App. Cases 352 (Privy Council) which recites the principle that a vessel not sailing under the maritime flag of a state enjoys no protection whatever.

I attach a photo-copy of the undisputed facts of that case, which appear quite apt in the present circumstances. In that case, the Privy Council held that it was properly inferred that the passengers intended, if possible, to effect an illegal landing in Palestine, that no principle of international law was broken by her seizure, and that once the vessel was within Palestine territorial waters, whether she came voluntarily or under compulsion, the relevant local ordinance applied which provided for the ship's forfeiture.

S.37S of the Ordinance provides for the exercise of powers in waters not the waters of the colony for the purpose of preventing

a) the commission of an offence under the Ordinance

b) the entry to Hong Kong of unauthorised entrants.

Leaving aside circumstances as in (2) above, the Geneva Convention speaks only of boarding a ship. What actions, other than boarding, can we expect the R.N. to take for prevention purposes?

Well established exceptions to the operation of Article 22 are the doctrines of constructive presence and hot pursuit. Constructive presence means that a ship may be arrested on the high seas if at the time of arrest it is engaged in illegal action within the territorial sea or on land, usually by means of boats or other craft working as a team with the 'mother' ship.

İCONFIDENTIAL

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