TNAG-2822-FCO40-4072-Hong-Kong-boundaries-and-territorial-waters-1993 — Page 8

CODE 18-77

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Mr Morris

BOUNDARIES

1.

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Miss Brooks has now produced the attached views on Hong Kong's proposed way forward on Boundaries, as set out in Hong Kong telno 1756.

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2. This subject seems to have fizzled out somewhat last May after my predecessor updated Mr Goodlad on developments

(folio 17). We will need to consult ministers on the question of implementation at some stage. However

the Governor's inclination is to defer a firm decision on the implementation question until agreement has been reached with Guangdong on the revised boundary. That will, I think, be the time to consult.

3.

We still need to respond to the Hong Kong telegram.

Miss Brooks's minute is adamant about the difficulties of an MOU without legislation. However I agree with HKG that this subject is likely to be an emotive one for many Legislative Councillors and I tend towards the HKG view that the possible difficulties of getting such legislation through LegCo outweigh the potential difficulties attached to substituting a new boundary without corresponding legislation. There is also, I suppose, a slight danger that LegCo will seize on this in any case (even without the introduction of legislation) and choose to make

an issue of it. But I do not think that is a major risk.

4. I therefore think that we should send a short reply to HKG indicating that, despite the obvious drawbacks of proceeding without relevant legislation, we feel inclined to agree that they go ahead with their proposed course of

action and that we shall be submitting on this to ministers in due course.

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CE Garrett

HKD

WH305

2702655

26 November 1993

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From:

Mr Garrett

HKD

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Miss S Brooks

Legal Counsellor

Date: 26 November 1993

CC: Mr Chamberlain, Deputy

Legal Adviser

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BOUNDARIES OF HONG KONG

1.

19

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It appears from Hong Kong telno 1756 of 19 November that the first option in Hong Kong telno 456 of changing the legal definition of the boundary to coincide with the boundary to be set out in a MOU, by amendments to the Interpretation and General Clauses Ordinance, Cap. 1, Second Schedule and a UK Order, is rejected. (Incidentally, my only version of Cap. 1 is in a 1982 edition). The only option which Hong Kong now envisage is a MOU between Hong Kong and Guangdong which would change the boundary between Hong Kong and Guangdong before 1997. This would not be implemented by legislation in Hong Kong. Nor, it appears, is a UK Order envisaged.

2. The disadvantages of substituting a new boundary line in a MOU for the present boundary without a corresponding change to Cap. 1 or a UK Order would be considerable and serious.

a) Changes in the boundaries of Hong Kong are a matter for the royal prerogative. Even though such a MOU would be non-binding, it would establish a new boundary which in practice would mean that areas of Hong Kong would be given to Guangdong and vice versa. A MOU cannot be signed before the Crown's approval is given (by Order in Council). The prerogative would be pre-empted if the MOU were brought into operation before the Order.

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b) As indicated in paragraph 3 of my minute of 26 March to

Mr Bunten, the security forces of the PRC would be entitled to enter areas which legally remain part of the PRC even though they have been handed by the Guangdong authorities to Hong Kong.

c) Conversely, the Hong Kong authorities would remain

legally responsible for enforcing the laws of Hong Kong in areas of Hong Kong given to Guangdong without in practice being able to do so.

Even if the MOU were implemented by a UK Order which would form part of the law of Hong Kong but without a corresponding amendment to Cap. 1, the following problems would arise.

/a)

1

IV

a) A UK Order implementing the MOU would change the

boundary as a matter of Hong Kong law but if the definition of the boundaries of the Colony as set out in Cap. 1, Second Schedule were to remain unchanged, there would be a doubt as to whether the legal entitlement of the Hong Kong Government to exercise civil and criminal jurisdiction within the old boundaries remained,as a result of an apparent internal conflict in Hong Kong law.

b) Equally, the public may well be confused into thinking

that the Hong Kong authorities continue to have responsibility for enforcing Hong Kong law on those areas.

c) The failure to remedy a conflict between the UK Order

which would become part of the law of Hong Kong and the definition of Hong Kong Cap. 1, Second Schedule, would be open to criticism by lawyers and the public as well as leading to confusion.

4. There is the further (political rather than legal) point that, as a previous Hong Kong Government paper conceded, the Crown would have in practice given up territory and obtained only a non-binding arrangement in return.

5.

I would conclude that the option favoured by the Hong Kong Government is fraught with legal difficulties. It would be necessary in my view for a UK Order to be made (see paragraph 2(a) above). In consequence, there would be the "inconsistency between imperial legislation identified by the Hong Kong Government as something to be avoided

of 19 November, paragraph 6).

(Hong Kong telno 1756

and Hong Kong (epistation"

2

Shelagh Brooks

Shelagh Brooks