TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 30

CODE 18-77 AWO LK

7/84

Mr Smith, International Labour Adviser

Cc:

UND NTD

WIAD

FID

EAD

HKD

SED

SPD

HICK 216

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A

JULIAL.

Mr Fifoot, Legal Advisers Mr Grainger, Legal Advisers

Reference...

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M

ILO CONVENTIONS:

NON-METROPOLITAN TERRITORIES

1. You asked in your minute of 8 May for advice on the position of Non-Metropolitan Territories (NMTs) in the case where the UK ratifies an ILO Convention and in the case where the UK wishes .to denounce such a Convention. I have discovered that Mr Fifoot has already been consulted by HKD and has advised on the denunciation aspect (see below).

(a) Ratification

The general rule, as set out in the Vienna Convention on the Law of Treaties (1969) Article 29, on territorial scope of treaties is:-

2.

Unless a different intention appears from the Treaty or is otherwise established, a Treaty is binding upon each party in respect of its entire territory.7

The normal position, therefore, is that a country which has a metropolitan territory and NMTs for whose international relations it is responsible is taken to enter into and perform other acts in relation to treaties in respect of its entire territory.

A ratification will be a ratification not only on behalf of the metropolitan territory but also of all the NMTs.

3. But the Article provides for exceptions from the general rule. The first is where the Treaty itself establishes a different intention. It was common in treaties concluded before the 1960s to have a territorial application clause providing that a contract- ing party which is responsible for the foreign relations of other territories could, subsequent to its own ratification, extend the application of the Treaty to any or all of those territories and separately notify withdrawal in respect of any or all of them. Since the rise of anti-colonial sentiment at the United Nations, however, it has become very rare for such clauses to be included in treaties concluded under the auspices of the UN and normally there is no provision in such treaties on territorial application. Unless a different intention within the meaning of Article 29 can be established, the general rule then applies.

In the case of the UK we would argue that a different intention is indicated by our practice as regards ratification, which, since

4.

/1067,

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