TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 8

CODE 18-77 AWO Ltd. 7/84

Mr Leeks HKD

с

MILK 210/1

3 JQ 1936 4986

ALCEIVED IN

It

SC OFF

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PA

“Reference....

64

ILO CONVENTIONS:

HONG KONG

56

1. Hong Kong telegram no 1689 asked whether ILO Convention No 26 could be retained for Hong Kong by means of a declaration under Article 35(4) of the ILO Convention despite its denunci- ation by the United Kingdom. I have discussed this with Mr Fifoot and his minutes to me of 6 and 20 June, copied to you, refer.

2.

In his minute of 20 June, Mr Fifoot identifies three issues raised by the telegram under reference, ie whether an ILO Convention can be applied to a non-metropolitan territory

3.

(a)

(b)

(c)

notwithstanding that it has not been ratified by the metropolitan country;

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 (2) of the ILO Convention.

As to the first situation, although the ILO minutes quoted by the telegram apparently go so far as to say that a declaration under ARticle 35 (4) may be made whether or not the metropolitan state has ratified the Convention in question, I do not under- stand Hong Kong as asking that this should be done. They are talking about Convention 26 which the UK has ratified and has just denounced, and which was extended to Hong Kong. We are thus in the situation of paragraphs (b) and (c) above, not (a).

4.

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I would not in any event accept that paragraph 4 of Article 35 can be operated wholly independently of the adherence by the metropolitan state to the Convention in question. It has to be read in context. When paragraph 4 begins "Where the subject matter of the Convention is within the self-governing powers one must read the definite article "the" as referring back to the earlier references in the Article, which are to a Convention ratified by the Member State concerned. Thus, in paragraph 1 the basic obligation of Article 35 is that members undertook "that Conventions that they have ratified ... shall be applied to the non-metropolitan territories for whose international relations they are responsible". Paragraph 2 begins "Each member which ratifies a Convention shall ...' and then goes on to provide the obligations in relation to such a Convention for non-self-governing NMTs. When, therefore, the fourth paragraph opens with the words "Where the subject matter of the Convention is within the self-governing powers" I believe it must be referring to a Convention ratified by the metropolitan state.

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/5.