TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 5

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THEN GOES ON TO PROVIDE THE OBLIGATIONS IN RELATION TO SUCH A

CONVENTION FOR NON-SELF-GOVERNING NMTS. WHEN, THEREFORE, PARA 4

OPENS WITH THE WORDS 'WHERE THE SUBJECT MATTER OF THE CONVENTION

IS WITHIN THE SELF-GOVERNING POWERS' IT MUST REFER TO A

CONVENTION RATIFIED BY THE METROPOLITAN STATE.

3.

LEGAL ADVISERS CONSIDER HOWEVER THAT THE ESSENTIAL

PROBLEM WITH REGARD TO HONG KONG'S POSITION UNDER THE CONVENTION IS WHETHER IT HAS THE RELEVANT SELF-GOVERNING POWERS REFERRED TO IN ARTICLE 35(4). THEY DO NOT CONSIDER THAT, IN CONSTITUTIONAL TERMS, THE POWERS EXERCISED BY HKG CAN BE DESCRIBED AS SELF-GOVERNING POWERS. HMG COULD NOT THEREFORE MAKE A STATEMENT

TO ILO ASSERTING THAT HKG'S POWERS FALL WITHIN 'SELF-GOVERNING POWERS FOR THE PURPOSES OF ARTICLE 35(4) OF THE ILO CONSTITUTION.

4.

NEVERTHELESS WE AND LEGAL ADVISERS RECOGNISE THAT IT MAY

WELL BE DESIRABLE FOR THIS OR OTHER IL CONVENTIONS TO CONTINUE TO APPLY TO HONG KONG NOTWITHSTANDING UK'S DENUNCIATION. LEGAL

ADVISERS HAVE THEREFORE FORMULATED A DRAFT DECLARATION WHICH

WOULD HAVE THE EFFECT OF ENABLING HONG KONG TO REMAIN BOUND BY AN

IL CONVENTION WITHOUT RAISING THE CONSTITUTIONAL DIFFICULTY DESCRIBED IN PARA 3 ABOVE. SUCH A DECLARATION WOULD ALSO GET OVER THE QUESTION OF WHETHER THE CONVENTION HAD ORIGINALLY BEEN APPLIED TO HONG KONG UNDER PARA 2 OR PARA 4 OF ARTICLE 35. THE TEXT

OF THE DRAFT DECLARATION IS AS FOLLOWS:

BEGINS

IT HAS BEEN THE POLICY OF SUCCESSIVE BRITISH GOVERNMENTS OVER

MANY YEARS TO ALLOW HONG KONG TO DETERMINE CERTAIN MATTERS

RELATING TO THE REGULATION OF LABOUR AND EMPLOYMENT. THE SUBJECT

MATTER OF ILO CONVENTION NO 26 FALLS WITHIN THIS AUTHORITY.

WITHIN THE CONTEXT OF ARTICLE 35(4) OF THE ILO CONSTITUTION, IT IS THE VIEW OF HMG THAT HONG KONG MAY, NOTWITHSTANDING, AND

WITHOUT PREJUDICE TO, THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE UNITED KINGDOM AND HONG KONG, BE TREATED AS IF ILO CONVENTION NO 26 WERE WITHIN THE SELF-GOVERNING POWERS OF A NON-METROPOLITAN

TERRITORY. ACCORDINGLY, THE UNITED KINGDOM, IN AGREEMENT WITH THE GOVERNMENT OF HONG KONG, DECLARES THAT IT WILL CONTINUE TO

ACCEPT THE OBLIGATIONS OF THE ILO CONVENTION NO 26 ON BEHALF OF

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CONFIDENTIAL