TNAG-0909-FCO40-1119-Legislation-for-immigration-into-Hong-Kong-1979 — Page 81

от

C. Legal

Chamberlain

Counsellor

confirm that Hong Kong is entirely surrounded by territorial waters. However the point made by MOD which gave rise to FCO til 617 is that RN ships

to läker action

the high

ち

beyond Chinese territorial waters.

which Hong Kong

are seeking t

It is

would not

be able

Leas, i.e.

this

assertion which

challenge

at least in dify.

21/4

D. Wyat

MAED

Mr Wyatt

Please copy

4 m Well, HK GD

Dev

MAED

24/9

1. I still consider that the questions raised by the Hong Kong Attorney General's Office are largely academic. I would, therefore, give the following answers to points (1) to (5) in paragraph 4 of Hong Kong's letter of 29 August:

(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).

(3)

(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 advise 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 factors in a particular case which may be relevant and which would effect the legality of any proposed action.

But

It is true that Article 22 speaks only of "boarding" 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

1.