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THE LEGAL SECRETARIAT TO THE LAW OFFICERS
ATTORNEY GENERAL'S CHAMBERS
9 BUCKINGHAM GATE
LONDON SW1E 6JP
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General enquiries 071-828 7155
Direct line
071-828 13 866
P. Fifoot Esq., CMG
Legal Advisers,
- 9 AUG 1990
Foreign & Commonwealth Office,
Downing Street,
London,
SW1A 2AH.
..GISTRY ActionTaken
will regrand
(1.d.c.)
Dear
Pail
HONG KONG BILL OF RIGHTS
265
3 August 1990
Thank you for your letter of 31 July. I entirely agree with the propositions in paragraph 3 of your letter. In particular, of course, I agree with your statement that "to the extent that rights recognised by the Covenant may be violated by private persons, a State's international obligations may include an obligation to make individuals answerable in domestic law for such violations."
But, as I understand it, we do not accept that rights under the Covenant may be violated to any extent by private persons, except perhaps in the most extreme case. I am aware of the jurisprudence of the European Court of Human Rights regarding the positive obligations on States under Article 8 (and may be Article 11) of the Convention. But I believe that we regard this obligation under Article 8 to be somewhat of an exception, and unless and until the Court held that any other Articles were susceptible of a similar interpretation we would not accept that the Convention could in effect require the imposition of obligations as between private individuals. In every case in Strasbourg in which such an interpretation is claimed by an applicant for an Article in respect of which the Court has not taken a position, we argue against it. (The most recent case I recall is Prince.) Surely we would not accept a wider and more onerous interpretation for the Covenant than we do for the Convention?
I agree that we do of course defend our non-incorporation of international instruments on human rights by saying that we give effect to them by ordinary domestic law. But this defence does not, and does not have to, extend to the non-imposition of obligations upon private individuals: our position in that respect is, surely, that the international instruments in question (with the very few exceptions under the ECHR) do not require us to impose obligations on individuals.
I am sorry to prolong this correspondence and I know that you have many other more important points than this to take issue with on the Bill; but the point is an interesting one and does seem to have implications beyond the special problems of Hong Kong.