TNAG-2822-FCO40-4072-Hong-Kong-boundaries-and-territorial-waters-1993 — Page 21

n...

HICC 040/1

:93

Mr Bunten

HKD

13/5

CRY

From:

R&R.

Miss S Brooks

Legal Counsellor

Date:

6 May 1993

CC:

Mr Ricketts, HKD Mr Chamberlain, Deputy

Legal Adviser

BOUNDARIES OF HONG KONG,

13

This is

1. The discussion paper prepared by the Political Adviser's Office show that they remain hell-bent on negotiating a "non-binding administrative" boundary with Guangdong. now coupled with a recommendation that there should be subsequent legislation to bring Hong Kong's boundary into line with what has been agreed with Guangdong.

2.

If the boundary were changed by legislation, this should solve the problem to do with the exercise of criminal and civil jurisdiction identified in Hong Kong telno 456 of 23 March and my minute of 26 March. However, I remain very concerned that the PRC will not have endorsed the change in Hong Kong's boundary and will not be bound by it. PRC forces could enter into areas which before the boundary changes belong to Guangdong and after the changes belong to Hong Kong. Moreover, as I pointed out in my previous minute of 26 March, the changes may not in the end be taken into account by the State Council in preparing the map of the HKSAR.

3. I should emphasise that any changes in the boundaries of Hong Kong are a matter for the exercise of the royal prerogative. Legislation needed to be made to effect the changes in the boundaries would need to be made first in London so as not to prempt the royal prerogative, and then in Hong Kong. The entry into force dates must be synchronised so as to come into force on the same date. It would also be important that the MOU itself did not come into operation until the date on which the legislation came into force.

4.

I should also emphasise that when I looked at this matter previously (my minute of 26 March 1993), I was drawing on legal advice given by Mr Fifoot. While I believe that Mr Fifoot's advice is right, there is a possibility that when we are actually drafting the legislation, it may become apparent that there are problems and we may need to legislate some other way.

5. The discussion paper makes an assumption which in my view is incorrect. Paragraph 4 assumes that "without any mutually agreed line the Chinese will draw the SAR's boundaries as they wish in 1997.". But unless the CPG approached and gives some

/advance

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