TNAG-2662-FCO40-3858-Future-of-Hong-Kong-British-Consulate-General-1992 — Page 106

3. I have looked to see whether there is any provision in the Vienna Convention on Consular Relations 1963 which covers the case of expropriated consular premises. The PRC is a party to this Convention. I am minuting separately about the application of this Convention to the HKSAR. Article 31, paragraph 4 provides that:

"The consular premises, their furnishings, the property of the Consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State."

This appears to cover expropriation for the improvement of Hong Kong or any other necessary purpose since these would be purposes of public utility. There is clearly provision that in the case of such expropriation, prompt, adequate and effective compensation shall be paid. The compensation provided by Special Condition 14 is neither adequate nor effective. Article 50 is also of some help. This provides that the receiving State shall either facilitate the acquisition on its territory by the sending State of premises necessary for its consulate post or assist the sending State to obtain accommodation in some other way. Special Condition 44 could be used so as to invoke Article 50 and call on the PRC to assist the UK to obtain alternative accommodation and avoid any disruption of consular functions. Special Condition 44 could also be used to invoke Article 31 (3) on compensation, if there is no provision on compensation in the Grant. But in any case, Article 31 (3) would apply to compensation in respect of the Consulate irrespective of Special Condition 44, because the UK and PRC are parties to the Convention, subject to it applying to Hong Kong.

4. Mr Savage and I discussed the possibility of retaining Special Condition 14 and deleting parts of it. The removal of the words "at his sole discretion" and "depreciated" would not in fact do the trick, because it still leaves the Director-General in the position of certifying what is to be the current replacement cost or costs of the building. I also considered with Mr Savage the possibility of using the language from the Joint Declaration (JD86) on expropriation. This provides for payment of compensation corresponding to the real value of the property concerned which is to be freely convertible and paid without undue delay. But Mr Savage explained that what is needed is not so much compensation reflecting the real value of the property, but the reimbursement of building costs.

One possibility might be

that Special Condition 14 (b) is reworded to read "such sum as amounts to the reimbursement of the building cost or costs of that building or those buildings or parts thereof".

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