TNAG-2822-FCO40-4072-Hong-Kong-boundaries-and-territorial-waters-1993 — Page 41

HKCC 040/1

From:

Miss S Brooks

Legal Counsellor

APR 1993

Date:

26 March 1993

Cc:

PA

Action Tuk

Mr Chamberlain, Deputy

Legal Adviser

Mr Bunter HKD

BOUNDARIES OF HONG KONG

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3A

Hong Kong telno 456 of 23 March sets out three options for recording possible arrangements between the Guangdong authorities and the Hong Kong Government. The most important point to remember is that any agreement reached between the Hong Kong Government and the Guangdong authorities will not be binding on the CPG. In this context it should be noted that the decision of the NPC adopted on 4 April 1990 provides in its paragraph 2 that the map of the Administrative Division of the HKSAR will be published by the State Council. The State Council will be free to ignore any understanding reached between the Hong Kong and Guangdong authorities.

2. The best option is the first option. Ideally, from a legal point of view the changes to the boundaries which are acceptable to Hong Kong and Guangdong should be endorsed in an agreement between the UK and the PRC; the agreed changes should be given effect before 1997 by changes to both UK and Hong Kong legislation. Legislation in the UK would not be a problem since primary legislation would not seem to be required. Mr Fifoot advised in his minute of 26 April 1990 to Mr Sainty that no principal legislation in the UK would be needed to give effect to the proposed boundary changes so long as they did not involve transfers of any population or loss of nationality. He further advised that insignificant changes to the land boundaries would require only a prerogative Order in Council. More substantial changes to the land boundaries would require an Order under the Hong Kong Act 1985, Schedule, paragraph 3(1) (a) which would amend the Colonial Boundaries Act 1895 to provide for an alteration of boundaries, followed by an Order under the 1895 Act as amended. This route is somewhat toilsome, but it too would not involve primary legislation. course, in the present political circumstances, it is most unlikely that the Chinese would agree to any changes to the boundaries decided upon by the Guangdong and Hong Kong authorities. There does however, not appear to be any obvious need for urgent changes and it may be considered possible to postpone discussions with the Chinese until a later stage. Chinese cooperation may, however, not be forthcoming at all before 1997 and, in any case, the Chinese have always been sensitive on the boundaries issue for sovereignty reasons.

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