TNAG-1281-FCO40-1632-Chinese-visa-office-in-Hong-Kong-1983 — Page 128

See 1981 agreement

"I and

~HKK 349/1

RECEIVED IN REGISTRY

29 JUN 1983

'CER

REGISTRY

PA

Action Taken

48

A

Mr Burrows, Legal Counsellor

CHINESE VISA OFFICE IN HONG KONG

1.

.

Would you please refer to paragraph 2 of your minute of 22 June to Miss Walker, HKD? I enclose a copy of the minute which I wrote last month on the desirability of ensuring that the status to be accorded to the Chinese Visa Office by the Hong Kong authorities is not more generous than that which the Chinese have shown themselves willing to grant to our Consulate-General in Shanghai, particularly as regards personal protection and immunity.

2.

Personal Protection. Although the draft Understanding which we propose to present to the Chinese makes provision for personal inviolability and immunity from civil jurisdiction, I see that it gives no undertaking as regards personal protection. There is still the chance, therefore, that the Chinese may try to use signature of the Consular Agreement as a lever to satisfy the request made in their own draft of the Visa Office arrangement (Peking telno 49 of 17 May to Hong Kong) that the Hong Kong authorities guarantee the safety of 'officials' at the Visa Office and of their dependents. Such a concession would go well beyond what they have so far conceded for our Consulate-General, i.e. Article 40 of the Vienna Convention on Consular Relations giving protection to 'officers' only. The Chinese declined to extend the provisions of that Article to those members of our Consulate-General who would be classed as consular employees' (i.e. engaged on administrative and technical duties) or to any members of families (whether of officers or employees).

3. Personal Inviolability. Article 7 of our latest draft of the Consular Agreement states that 'Members of the consular post and members of their families

shall not be liable to arrest or detention pending trial. This clause, which has yet to be finally agreed by both sides, is not expressed in such compre- hensive terms as subparagraph 2(3) of our draft Understanding, which provides for freedom from arrest or detention 'in any form' and not merely 'pending trial'. If we are to offer the Chinese a formula in the Visa Office Understanding which contains the definitive phrase 'in any form', then I think we should make our proposal conditional on draft Article 7(1) of the Consular Agreement being similarly phrased.

4.

Immunity from civil jurisdiction. Both subparagraph 2(4) of our draft Understanding and Article 7 of the draft Consular Agreement confer on home-based officers immunity from civil jurisdiction in respect of official acts. While the draft Understanding adopts the straight provisions of Article 43 of the VCCR, the draft Consular Agreement modifies paragraph 2 of that Article so as to incorporate the exceptions provided for in Article 31(1)(a) to (c) and (3) of the Vienna Convention on Diplomatic Relations. Subject to Mr Whomersley's views, however, I do not believe that the terms of subparagraph 2(4) of the draft Understand- ing require to be modified in order to match those of the draft Consular Agreement.

27 June 1983

CODE 18-77

RS Glover NTD - CL 535 213-6192

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