TNAG-1431-FCO40-1914-Sensitivity-review-of-FCO-records-on-Hong-Kong-1985 — Page 128

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CONFIDENTIAL

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SENSITIVE RECORDS CONCERNING HONG KONG

FROM:

DATE:

HK.

Paul Fifoot

7 January 1985

and

1. The Law Officers' Opinion says, in effect, that prima facie China remained entitled in 1948 to exercise jurisdiction within the walled city of Kowloon (and, up to the date of the Joint Declaration, I am not aware of any circumstances which would change that view) they were not impressed by the argument that this prima facie right had then been ousted by military requirements. If this Opinion were to be available in the public domain, it could, with some justification, be used to support the contentions both that we did not abide by the Hong Kong Treaties but took, or rather excluded the Chinese from, jurisdiction which the 1898 Convention reserved to the Chinese, and that our own Law Officers would not have been prepared to support us. That we did not comply with the 1898 Convention in this respect would be nothing new to the Chinese

(provided the present Chinese government has access to the archives of its predecessors). Nor should it be reasonably capable of being represented as of particular significance in present circumstances; leaving aside the very limited area of the walled city, the present Chinese authorities have always questioned the validity of the Hong Kong Treaties and whatever further defects or flaws which may have been implicit in, or associated with, the Treaties and their implementation, are over- taken by paragraph 4 of the 1984 Joint Declaration which provides for the continuing responsibility of the United Kingdom for the administration of Hong Kong during the transitional period.

2. However, I do not think that my assessment of what is reasonably capable of being treated as significant is necessarily to the point in this matter. The preliminary questions are whether the disclosure of the English Law Officers' view that our position on Kowloon was flawed would lead to the Chinese reverting to the position that they were presently entitled to exercise jurisdiction in whatever area forms the walled city today (despite Article 4 of the Joint Declaration) or, however improbably, would cause them not to ratify the Joint Declaration or to take some other course which they would not otherwise take. These are essentially questions for those who have had experience of the Chinese and of the negotiations.

3. With regard to sending the Law Officers' Opinion to

Mr Jeaffreson in Hong Kong, there are restrictions on disclosing Opinions of the Law Officers - see DSP, Volume 36, paragraph 8.8. If you wish to pursue this idea, I would need to seek the agreement of the Law Officers Department.

HKK 444

RECLIVED IN REGISTRY

13 AM 1985

KER

Paul Fifoot

Deputy Legal Adviser

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CONFIDENTIAL