TNAG-2716-FCO40-3922-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1993 — Page 148

very strong.

Regarding the Basic Law itself, the Basic Law, as has been

stated, is essentially a law that has been adopted by the People's Republic

of China, but it does have a link into the international obligations of

China under the Joint Declaration, Annex I to the Joint Declaration, and

indeed Article 3 of the Joint Declaration itself spells out certain

frameworks which the People's Republic of China have undertaken to maintain

in respect of Hong Kong. The Basic Law constitutes an element in giving

effect to those obligations. The obligations themselves are essentially

under the Joint Declaration itself.

Regarding the Exchange of Letters, it

is of course possible that an exchange of letters amongst states may amount

to an agreement. As I said earlier, the definition of a treaty is a matter

of substance, not a matter of name. However, when one looks at both the

context of the letters and also their content. I would agree with the

perspective that has been expressed by the Foreign Office that these

letters do not amount to a formal agreement in international law.

Mr Keller, would you like to comment?

91.

(Mr Keller)

On Mr Duffy's first two points I am really in total

agreement with those. On the third point regarding the exchange of

correspondence, I think in my own view, having looked at these quite

closely, they could well be a binding international agreement, the form of

the agreement even in customary international law and an oral exchange

could amount to a treaty. So the form is not a problem. Within them I

would say that there is an agreement on the question of directly elected

constituencies, but this is not an issue at the moment between the two

governments. The fact that there is an agreement on that point I would not

think it is too important. I think the Foreign Office's position on some

of the reasons why this Exchange of Letters does not constitute a treaty is

somewhat weak on a couple of points. I think they came closer to legal

agreement than they perhaps wisely wish to state. However, at the end I

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