Option 1 could not be exercised until the change of sovereignty had taken place in 1997. It would also depend on whether China had by then become a member of the GATT. At the present time it is impossible to say with certainty that she will have done so.
8
As for Option 2, GATT Article XXXIII in theory permits either the UK acting before 30 June 1997 or China thereafter to accede afresh to the GATT on Hong Kong's
Kong's behalf. However, legal experts in the GATT secretariat have advised that recourse to Article XXXIII in practice reflects a procedure normally used by independent sovereign states which have had no previous connection with the GATT. Article XXXIII has only once been used by a dependent territory attaining independence. This was Tunisia in whose favour France had already made a declaration under Article XXVI 5(c). Tunisia ignored this and proceeded instead under Article XXXIII apparently because the Tunisian Government did not wish to continue with the tariff concessions which France had previously negotiated on its behalf. No such
No such considerations would apply in Hong Kong's case, and, unless there were other good reasons for doing so it would seem pointless to put the views of the GATT legal experts to the test.
9
A further consideration relevant to Option 2 is that a two-thirds majority of the contracting parties is needed for accession to the GATT under Article XXXIII. Even assuming that general sympathy towards Hong Kong would secure such a majority (and there must be doubts about this), the necessary negotiations would take time and might not secure the desired result. This could undermine confidence in Hong Kong's future. Furthermore, if Hong Kong
Kong were to embark on action under Article XXXIII, and the necessary two-thirds majority were not forthcoming, it might be
it might be difficult to revert to the Article XXVI 5(c) route.
This is because it might represented that Hong Kong was trying
trying to gain entry
entry to GATT through the back door having failed to get in through the front. Even if a belated Article XXVI 5(c) declaration in Hong Kong's favour could not be stopped, Hong
Hong Kong's eventual standing in GATT could be seriously undermined.
Note (2) Article XXVI 5(c)
be
"If any of the customs territories, in respect of which a contracting party has accepted this Agreement, possesses or acquires full autonomy in
the conduct of its external commercial relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the above-mentioned fact, be deemed to be a contracting party.
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