TNAG-2389-FCO40-3471-Extradition-from-the-UK-to-Hong-Kong-case-of-Lorrain-Esme-Os-1991 — Page 195

CONFIDENTIAL

CONFIDENTIAL

FM UKREP JLG HONG KONG

TO IMMEDIATE FCO

TELNO 128

OF 130945Z MAY 91

INFO IMMEDIATE HONG KONG

YOUR TELNO 37 : LORRAINE OSMAN

1.

ADVANCE COPY

: HABEAS CORPUS 5

016167

MDADAN 0201

ст

(RedStar

to thr Ziegel

Treasury Solicitors

Mis/s

M.morriz

V/13/5

SINCE CLIFFORD CHANCE DID NOT CONTACT US, WE HAVE TODAY BEEN IN TOUCH WITH DAVID SCOTT, ONE OF THE SOLICITORS IN THE FIRM. HE HAS TOLD US THAT CLIFFORD CHANCE ARE NOT AT PRESENT CONTEMPLATING PUTTING FORWARD ANY FURTHER DOCUMENTARY EVIDENCE, BUT WILL RELY ON ARGUMENTS FROM THE BAR TO DEAL WITH PROFESSOR GHAI'S NEW AFFIDAVIT.

2. WE AGREE IN GENERAL WITH THE LINE YOU SUGGEST IN YOUR PARA 3.

THE POINT TO GET ACROSS IS THAT THE JLG IS NOT AN AUTONOMOUS BODY WITH A WILL OF ITS OWN (A COMMON MISCONCEPTION HERE.) IT IS MERELY A VEHICLE FOR DISCUSSION BETWEEN THE TWO GOVERNMENTS, WHICH WAS SET UP BY THE TWO GOVERNMENTS UNDER THE JOINT DECLARATION FOR THE SPECIFIC PURPOSE INTER ALIA OF CONSULTATION ON THE IMPLEMENTATION OF THE JD. IT IS STAFFED BY DIPLOMATS OF

THE TWO SIDES WHO ARE AS MUCH UNDER THE ORDERS OF THEIR GOVERNMENT AS THE AMBASSADORS OF THE TWO COUNTRIES TO EACH OTHER. HENCE AGREEMENT REACHED BETWEEN THEM HAS THE SAME VALIDITY AS ANY AGREEMENT REACHED FOR INSTANCE BETWEEN AN EMBASSY AND THE MINISTRY OF FOREIGN AFFAIRS OF ITS HOST COUNTRY. POINTING TO PREVIOUS EXAMPLES OF AGREEMENTS REACHED MAY BE USEFUL, BUT OF COURSE PROFESSOR GHAI COULD EQUALLY MAINTAIN THAT THEY WERE NOT BINDING ON GOVERNMENTS AFTER 1997. THE PART OF ANNEX 2 QUOTED BY PROFESSOR GHAI IN HIS PARAGRAPH 5 IS NOT RELEVANT. THIS CONCERNS THE AUTHORITY (OR RATHER LACK OF IT) OF THE JLG OVER THE HONG KONG GOVERNMENT. WHAT IS SURELY AT ISSUE HERE IS WHETHER OR NOT THE JLG IN REACHING AGREEMENT SPEAKS FOR THE TWO GOVERNMENTS, AND HENCE BINDS THE TWO GOVERNMENTS TO ACT IN ACCORDANCE WITH THE

AGREEMENT.

3.

THERE ARE SOME OTHER OBVIOUS WEAKNESSES IN PROFESSOR GHAI'S SUBMISSION. IN HIS PARAGRAPHS 7, 9 AND 11 HE SPEAKS OF THE LACK OF AUTHORISATION OF THE CPG TO THE SARG TO CONCLUDE AGREEMENTS ON EXTRADITION. THIS IS HOWEVER NOT RELEVANT TO THE SITUATION PRIOR TO 1997. THERE IS NO SARG TO BE AUTHORISED. THE ISSUE IS THE

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