TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 32

CODE 18-77 AWO Ltd. 7.84

Reference.....

8. The result, so far as ratification is concerned, is that we are bound to notify all NMTs of our intention to ratify. In cases where we consider the subject matter might fall within their self- governing powers this is an obligation under Article 35(4). And in any other case it is incumbent upon us to consult in order to ascertain whether there is any reason why the Convention may be inapplicable owing to local conditions or whether modifications. are necessary to make it capable of application,

9. It is not necessary to complete this process before we ratify on behalf of the UK because the declaration specified in Article 35(2) concerning NMTs does not have to be communicated until after the UK has ratified on behalf of itself. But that declaration should be communicated as soon as possible, so the process ought to begin before our own ratification is deposited.

(b) Denunciation

10. I attach a copy of Mr Fifoot's advice of 10 May to Hong Kong Department referred to above. He concludes that, in cases covered by Article 35(4), where the subject-matter of the Convention is within the self-governing powers of an NMT, the structure of Article 35 means that a metropolitan power assumes in respect of such a territory a separate and distinct obligation which requires separate termination and is not automatically determined by a denunciation on behalf of the metropolitan power. In cases where the subject-matter is not within self-governing powers, however, and the NMTS are covered by a declaration made under Article 35(2), the same ratification covers both the metropolitan power and the NMTs and a denunciation on behalf of the metropolitan power will operate also for those NMTs.

11.

You will see from Mr Fifoot's manuscript note that he has not directly addressed the question whether the United Kingdom could in the latter situation advisedly denounce for the UK only but deliberately keep up treaty obligations in respect of a dependent territory. He accepts that as a possibility, but not one which automatically flows from the structure of Article 35.

12. If one wished to construct an argument to preserve treaty obligations for an NMT where the subject-matter of the Convention was not within self-governing powers and the UK wished to denounce, it would run as follows. The general rule on the position of NMTs on denunciation is the mirror image of that in Article 29 of the Vienna Convention: ie, just as a State's ratification normally binds all its NMTs as well, so its denunciation is normally effective for them also. But, as with ratification, it is possible for a contrary intention to be established (as Article 35 itself does where the Convention is within self-governing powers). Since an NMT for whose foreign relations a metropolitan state is responsible has no treaty-making power of its own (unless special powers are delegated to it in individual cases), continuing adherence by that territory to a treaty to which the metropolitan state has denounced must be effected through the metropolitan state. It would therefore be necessary for the, metropolitan state to address a notice to the depositary of the treaty, in this case the ILO itself, expressly preserving treaty obligations in relation

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