I
CONFIDENTIAL
Foreign and Commonwealth Office London SW1A 2AH
GT Barnes Esq
Security Branch
Government Secretariat
Lower Albert Road
HONG KONG
Telephone 01-
HKK 341 3 +13
4
R JMR
No
16/10.
IMMIGRATION (AMENDMENT) (NO 3) ORDINANCE
$
Your reference
Our reference HKK 341/3.
Date
16 October 1979
3
1.
Thank you for your letter of 29 August.
اله
35
see(37)
2.
We have consulted our Legal Advisers and their views on the points in paragraph 4 of your letter are:
(1) There are no "powers conferred by treaty" which are
relevant in the context of preventing the illegal immigration of Vietnamese refugees. The phrase in Article 22 of the Geneva Convention is intended to recognise the right of any state to permit the war ships of another state to exercise jurisdiction over its own vessels. There are a few examples of this, mainly in the field of fishery conservation.
(2) (a) As a matter of international law, there is no problem about the Royal Navy boarding British ships. It is for the Ministry of Defence to advice on the position under domestic law.
(b) I agree that a vessel which has no nationality
enjoys the protection of no state. In principle, the Royal Navy could stop, board and escort such a vessel into port. However, I am reluctant to give a firm ruling on a hypothetical case. There might be other facts in a particular case which may be relevant and which would effect the legality of any proposed action.
(3) It is true that Article 22 speaks only of "boarding"
But this provision has to be read as subject to the general principle of international law that foreign merchant vessels on the high seas have the right to freedom of navigation. The Royal Navy is therefore not entitled to take any action which would have the effect of derogating from this right. The only exception to this is the so-called "right of approach" under which a war ship has the right to approach, in cases of suspicion, a merchant vessel on the high seas
/in
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