5.
As to the issues identified in (b) and (c) above, they were addressed in Mr Fifoot's minute of 10 May 1985 and my minute of 30 May 1985, copies attached for ease of reference. Briefly, in
case covered by Article 35(4) the declaration made under that paragraph is separate from the obligations assumed on ratification by the metropolitan state and is not automatically determined by denunciation on behalf of that state. In the situation where a Convention was applied to an NMT by declaration under Article 35(2), however, ie where the subject matter is outside self-governing powers, the position is much less clear. I suggested in paragraph 12 of my minute of 30 May an argument which would permit us, even in that situation to address a notice to the depositary of the treaty, ie the ILO, expressly preserving treaty obligations in relation to such an NMT notwithstanding our own denunciation.
6. The problem with Hong Kong is whether it has the relevant self-governing powers referred to in Article 35(4). Mr Fifoot addresses this question in his recent minute and proposes a declaration which could be made under paragraph 4 of ARticle 35 preserving the application of the Convention in relation to Hong Kong. This would get over the question whether the Convention had been originally applied under paragraph 4 of Article 35 or paragraph 2. I would regard the fact of a declaration on these lines as deeming Hong Kong to be in the position that the Conven- tion applied to it, and always had applied to it, by virtue of a declaration under paragraph 4, the effect of which is expressly preserved by the new declaration.
7. As to timing, since the view we have taken is that an Article 35(4) declaration continues to have effect despite a denunciation unless expressly terminated, it would not matter that the UK notice of denunciation had already been deposited.
MR Eaton
23 June 1986
CC: Mr Fifoot, Legal Advisers
Mr Smith, International Labour
Adviser
MR Eaton
Legal Advisers
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