TNAG-2159-FCO40-3079-Hong-Kong-nationality-package-Chinese-views-1990 — Page 54

CODE 18-77

Reference

represent customary international, as to which law there are differing decisions from international tribunals (although often turning on the tribunals' particular terms of

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reference) In one case the practice was treated as law; in another in adjudicating on a claim by one state on behalf of a person it claimed as a national against another state which also claimed the individual as its national, the court sought to determine what is the "active" or "real and effective" nationality in order to decide on the State's right to pursue the claim. It must be doubtful if an international tribunal would go down that road where the usual practice of a state (such as the United Kingdom) was not to seek to exercise protection. Even, if it did, it must be questionable whether British nationality could be held to be the real and effective nationality of a Hong Kong Chinese who continued to live and work in the SAR.

2. The short answer to the question whether we could seek to exercise consular protection as regards a Hong Kong Chinese living and working in the SAR who had taken British Nationality but had not renounced Chinese nationality, is that it would be against our practice to do so and that China would not recognise our right to do so.

3. It follows from the above:-

(a) The briefing for Mr Lloyd's visit to Hong Kong is misleading. The third tiret under 'Consular Protection' is irrelevant to post 1997 and the note under 'Dual Nationality is wrong.

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(b) The last sentence of the Secretary of State's letter of 9 March to Mr Grierson is wrong. (The premise the penultimate sentence though correct is irrelevant.) You may wish to take steps to correct this in case Mr Grierson comes back on it. The text of any correction should be cleared with Legal Advisers.

4.

May I leave it to you to copy this minute as necessary?

f

Paul Fifoot

Legal Advisers

KC7ABD