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From: Sir Arthur Watts
Legal Adviser
Date:
6 June 1989
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VIETNAMESE BOAT PEOPLE (VBP):
1.
Mr Gillmore, DUSS
Mr Edwards, Legal Advisers
Mr Paul, Hong Kong Department Mr Brenton, UND
Mr Whomersley, Legal Advisers
LEGAL ASPECTS
The increasing seriousness of the VBP situation has prompted me to wonder whether we can derive any help for our position from legal considerations. Although the practical problem is urgent, and legal considerations will tend to be slow acting, there may nevertheless be some things that can be done, if only to give immediate evidence of our view of the seriousness of the situation, and of our deter- mination to do everything in our power to find a solution.
2. Perhaps the basic legal factor is the duty of every State to take back into its territory those of its nationals who are not acceptable in any other State. This is an obligation arising under international law, and could no doubt be forcefully put in relation to Vietnam's legal obligations.
3.
We cannot argue that a State is under an obligation not to allow its nationals to leave its territory - indeed, we spend much time arguing the contrary. However, we may be able to make something of the argument that a State which allows large numbers of its nationals to leave its territory. knowing that they are doing so and that their arrival in neigh- bouring countries is likely to cause serious problems for those countries, is in some way acting improperly.
4. David Edwards tells me that he has recently advised HKD that one of the problems about action to be taken in Hong Kong is that it might put us in breach of some of our obligations under the UN Covenant on Civil and Political Rights. It occurred to me to wonder whether we might not be able to make a case for suspending the operation of the Covenant in relation to Hong Kong, by invoking the derogation procedure under Article 4.1. But as Mr Edwards has also advised, this is not wholly straightforward from a legal point of view and we would not be able to derogate from those articles most likely to cause us a problem.
5. It is also worth noting that Vietnam is a party to the Covenant, having acceded in 1982. We might explore the extent to which Vietnamese actions could be regarded as putting Vietnam in breach of its obligations under the Covenant and whether there is any action we could take to
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