TNAG-1991-FCO40-2831-Future-of-Hong-Kong-British-Nationality-(Hong-Kong)-Selectio-1990 — Page 119

CONFIDEN

FILL HEI

Jax to HK, Pekking

Our Tel. of 27/11 refers.

fw.

Not: Chinese

cultitudes

D M Edwards

Legal Advisers

hu

27/01

From:

Mr Wood

Hong Kong Department

WH 304

340/18!

Date:

12 May 1989

CC:

Mr McLaren

Mr Paul

HONG KONG:

1.

NATIONALITY

Please refer to your minute of 11 May about the status of the Memoranda associated with the Joint Declaration and what the possibilities might be if the government were minded to change the current policies towards Hong Kong residents who are BDTCs.

2. Subject to looking at the relevant travaux preparatoires (which I should be grateful if you could look out), my understanding is that the Memoranda do have a different status to the rest of the Declaration. Thus, it may well be that they are not, strictly speaking, binding as a matter of international law.

We are ourselves careful to distinguish them from the main part of the Joint Declaration and the Annexes: Thus, in paragraph 12 of the paper submitted by the FCO to the Foreign Affairs Committee, we said:

3.

Declaration by the

The Annexes have the

"The agreement consists of a Joint two governments and three Annexes. same status as the Joint Declaration. Associated with the Agreement is a separate Exchange of Memoranda on the status after 1997 of Hong Kong British Dependent Territories citizens."

Having said this, however, I would make two points at this stage. First, the Memoranda were exchanged between the two sides and are, of course, closely related and are concerned with the same subject-matter. In our Memorandum we declared that, under UK law, BDTCs would cease to have that status after

:

1 July 1997 but will retain an appropriate status which "without conferring the right of abode in the UK" will entitle them to continue to use passports issued by the UK. It was on the basis of our Memorandum that the Chinese wrote theirs (see JD 232 in which the Chinese refer to our Memorandum). If we now chose to act in a way that was not consistent with our Memorandum, the Chinese could argue with justification that the basis of their Memorandum has been undermined and that, to take an extreme example, they were no longer prepared to permit Chinese nationals in Hong Kong who were previously called BDTCs to use travel documents issued by the UK government for the purpose of travelling to other states and regions (JD 234).

CONFIDENTIAL

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My second