TNAG-2152-FCO40-3071-Commonwealth-war-graves-in-Hong-Kong-1990 — Page 39

Mr sainty, HKD

COVERING CONFIDENTIAL

HKC 225

Klu

KY

From:

Paul Fifoot

Legal Advisers

-

- 4 JUL 1990

Date:

21 June 1990

CTRY Taken

A.

17

COMMONWEALTH WAR GRAVES: PARAGRAPH 7 OF HONG KONG TELNO 1403

1.

As I understand it, and this tends to be confirmed by Appendix B to the CWGC's letter of 16 January 1986 (folio 6 on HKK 225/1 of that year), formal agreements are made for the protection of war graves between members of the CWGC and foreign countries. So far as war graves in Commonwealth countries are concerned, less formal arrangements are made. The former would be capable of creating international rights and obligations; the latter may not create international rights and obligations.

2.

As regards Hong Kong, the important point, as paragraph 7 of TUR recognises, is that such arrangements as are made now should be capable of surviving 1997 and that means that the arrangements must be capable of being inherited by China. This points to following the foreign country path (even though that may be somewhat anomalous for the period up to 1997) rather than the Commonwealth path.

3.

The most desirable solution is one in which China could be substituted as a successor to the party to the agreement which represents the territory in which the war graves are situated (ie the UK or Hong Kong). I would see no difficulty as a matter of law to an agreement between the United Kingdom in respect of Hong Kong, of the one part and the six countries, which include the United Kingdom, as respects their membership of the CWGC of the other part. True, this would theoretically involve the UK having both a right and obligation as respects the same matters, but that is of no consequence. What matters is that up to 1997 the UK, in right of Hong Kong, would be under an obligation to the other members of the CWGC as regards war graves in Hong Kong and that from 1997 onwards China could succeed to the UK so far as the obligations under the agreement are concerned leaving the UK, together with the other members of the CWGC, entitled to the rights under the agreement.

4.

A

An alternative would be an agreement between Hong Kong, acting under an authority granted by the UK, of the one part and the six members of the CWGC of the other. possible drawback to this arrangement would be whether China would object to succeed to Hong Kong (a non-sovereign entity) in the agreement or alternatively whether it would be prepared to authorise, and empower, the SARG to succeed.

2PFABG

COVERING CONFIDENTIAL

CS

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