TNAG-2088-FCO40-2973-Diplomatic-representation-of-third-countries-in-Hong-Kong-1990 — Page 12

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RECEIVED IN A

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15 MAR 1990

REGISTRY

Action Taken

ICES

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J.

Deputy Legal Adviser

13 March 1990

Mr Everard, SAMD

Mrs Link, Protocol Ms Foakes, Assistant

Legal Adviser

Mr Stone

Hong Kong Dept

ARREST OF VENEZUELAN CONSULAR OFFICER IN HONG KONG

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1. You will in the meanwhile have had a copy of Ms Foakes's minute of today's date. Like her, I know little of the particular facts; I do however agree with her entirely that it is only on the basis of a careful study of the particular facts that we shall be able to decide upon the proper course of action. The only point on which I am not in complete agreement with Ms Foakes is that in the last sentence of her paragraph 3; the duty of Consular officers and officials to respect the laws and regulations of the receiving State stands independently of such privileges and immunities as they may enjoy.

2.

For what it may be worth, I am satisfied in my own mind that neither of the two following propositions is readily defensible in law or in good sense:-

(a) that the process of receiving applications for and issuing passports and visas is not "acts performed in the exercise of" consular functions (not, be it noted, "consular functions" tout court);

(b) that an act which falls under (a) ceases to do so if carried out for an improper motive.

Proposition (b) would also hold potential dangers for the position of our own officials, since it would in practice turn in the first instance on the allegations made by the receiving State and would thus potentially undermine the objective nature of immunity.

3.

The thing to do now, as the minuting suggests, is to think carefully about the facts, about how we would deal with a similar case arising in the UK, and how we would react to similar claims in respect of our consular officials abroad. In deciding on our future course of action, we ought also to weigh how far the alleged offences constitute frauds against

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