TNAG-1402-FCO40-1874-Future-of-Hong-Kong-continued-participation-in-the-General-A-1985 — Page 69

ATTORNEY GENERAL

H.STEEL.CMG OBE

LEGAL SECRETARY

HKK040/24

RECEIVED IN

FANTRY

- 2 JUL 1985

-

DESK OFFICER

INDEX

Our Ref: 400/85/148

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CONFIDENTIAL

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LAW OFFICERS' DEPARTMENT

ROYAL COURTS OF JUSTICE

LONDON, WC2A 2LL

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26 June, 1985

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Sir John Freeland KCMG

Legal Adviser

Foreign and Commonwealth Office Downing Street

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HONG KONG AND THE GATT

Thank you for your letter of 19 June. I have shown the papers to the Attorney-General and I preface his advice by saying that he has asked me to express his gratitude for Paul Fifoot's excellent Memorandum.

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First, the Attorney-General sees no problem in construing Article XXVI 5 (c) of the GATT as permitting a declaration under it to be made in respect of a territory which, in legal terms, is still a dependency. Indeed, he thinks that the phrase "possesses or acquires" points incontestably to that conclusion.

Second, as regards the meaning of the word "establishes", he inclines to think that it means no more than "makes out a convincing case for the proposition".

But if it denotes as well (or instead) the performance of some formal act to

bring about the required state of affairs, he thinks that the issuing of the proposed Entrustment, coupled with the making of the necessary declaration under Article XXVI 5(c), would suffice for that purpose.

Third, there is the central question of whether, despite Hong Kong's primitive

constitution and the retention in law (and the reality of the possible invocation

in practice) of HMG's residual powers, we can respectably contend that the

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