TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 10

Mr Eaton

Legal Advisers

HELL. 210/

ALCERVEL

3 JUL 1986

43:

INDEX

63

FROM:

Paul Fifoot

DATE:

20 June 1986

c.c.

Mr A Smith

(Intl Labour Adviser)

Mr Leeks (HKD)

ILO CONVENTION:

HONG KONG

1. I have been giving further thought to the application to Hong Kong of ILO Conventions.

2. There are various issues as to whether an ILO Convention can be applied to a non-metropolitan territory:-

a)

b)

c)

notwithstanding that it has not been ratified by the metropolitan country (Hong Kong telno 1689);

after denunciation by the metropolitan country, but in a case where it was originally applied to the non-metropolitan territory pursuant to a declaration under Article 35.4 of the ILO Constitution;

after denunciation by the metropolitan territory, but where the Convention was originally applied to the non-metropolitan territory by virtue of Article 35.1 of the ILO Convention.

These are primarily issues for you as legal adviser to the Inter- national Labour Adviser.

3. However, central to these questions, so far as Hong Kong is concerned, is whether Hong Kong has the relevant self-governing powers referred to in Article 35.4.

4. I do not think that one can describe any power exercisable by the Hong Kong Government as a self-governing power and, therefore, I do not think that one could make a statement which baldly asserts that Hong Kong's capacity in any relevant respect falls within "self-governing powers" for the purposes of Article 35.4 of the Constitution. However, I recognise that it may be considered desirable for Hong Kong to be able to "attach" itself to a Con- vention notwithstanding HMG is not a party in respect of the United Kingdom. I have, therefore, been considering formulating a declaration for the purposes of Article 35.4 which would have the effect of enabling Hong Kong to be separately bound to an ILO Convention without compromising the constitutional position. following is a first attempt at such a formulation:-

The

/ "It