5. I would think that the position is that we would consider all three "unequal" treaties to remain valid and in force until 30 June 1997, since our view that we retain sovereignty over Hong Kong until that date must be based on those treaties rather than on the Joint Declaration. However, it is not necessary for me to reach a definitive view on that wider issue. We are only concerned here with jurisdiction, not sovereignty or ownership of land. Even if the Convention remains in force, it seems to me that Para 2 concerning Chinese jurisdiction is incompatible with Article 4 of the Joint Declaration, which provides that "during the transitional period between the date of entry into force of this Joint Declaration and 30 June 1997, the Government of the United Kingdom will be resposible for the administration of Hong Kong....". "Hong Kong" is defined in Article 1 as including the New Territories. Paragraph 2 of the Convention is therefore no longer applicable, and that means that our position in international law has been secure since 1985.
6. If the concern is about trouble with the occupants of the City, rather than with the Chinese (who presumably want the City cleaned up before 1997), the position in Hong Kong law is more directly relevant. The Colonial Office Memorandum of 1963 states that in municipal law it cannot be challenged that the jurisdiction of the Hong Kong courts extends to the City. I presume that law is still the same. Therefore it is difficult to see how the release of these papers could possibly strengthen the position of any protesters thinking of litigating for more compensation.
7.
The only risk I can see of releasing these papers is that if any occupants discover their contents, they might mistakenly believe that they have a case for arguing that the UK is in breach of international law (which we could obviously rebut) or that their moral case is somehow strengthened by the fact that we may have acted there in breach of international law in the past. We would have to consider how to respond to such a charge publicly, should it ever become necessary to do so. but it is hard to imagine the occupants being able to stir up a groundswell of public support for more compensation on such a basis.
8. The grounds for extended closure do not look very compelling to me. However, it is for you to judge whether, in the words of the guidelines, the papers are "exceptionally sensitive", disclosure of which now would be "contrary to the public interest". If you would like to discuss it again in the light of the above advice, please give me a call.
Hill Butt
Jill Barrett
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