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Reference
362
му
minute & 31 October
refers.
Tel ent
På
HKD 241/1
CC
for
RECER
14/11
Ms Major,
HKD
367
From:
Date:
Jill Barrett
Legal Advisers
13 November 1990
MAČE KREVETTES SEEM L
Mr Fifoot, Legal Advisers Mr Walker, RAD
14 NOV 1990
243)
238
213
HONG KONG BILL OF RIGHTS: COMPATIBILITY BETWEEN ICCPR AND NEW TERRITORIES LAND POLICIES
1. I agree that we can answer the question in Hong Kong telno 2248 (paragraph 5) by saying that HMG has not expressed any view on the compatibility of NT land policies with the ICCPR, either on ratification of the ICCPR in 1976 or during negotiation of the JD. Any statements which HKG make about such compatibility should certainly be limited to HKG's position and should not purport to state HMG's view.
2.
With reference to the words in brackets at the end of paragraph 2 of your draft telegram, I do not think that the statement in the ExCo paper of 13 July is sufficiently limited. The statement in paragraph 18, "When the ICCPR was applied to Hong Kong on 20 August 1976 the Government considered that all its laws, including those relating to the NT, were in conformity with that Covenant", refers, I presume, to HKG. But the next sentence, "the Government held the same view in 1984 when it accepted JD 156, 204 and 205", can only be taken as a reference to HMG. I doubt very much that it is factually correct; JD 204 and 205 are concerned only with one aspect of NT land policy. Inclusion of these articles in the JD cannot possibly imply a view on the entirety of these policies. Moreover, it would appear from Mr Walker's minute (paragraph 21) that even the question of compatibility of JD 204 and 205 with the ICCPR was not raised during the JD land negotiations. His researches have not thrown up any FCO legal advice on this point.
3.
I also doubt that HKG's views are legally correct (see paragraph 6 of our telno 1213). It can certainly be argued that JD 204 and 205 are not incompatible with the ICCPR, provided that they are interpreted in such a way that the benefits conferred on descendants through the male line by JD 205 are also conferred ond-escendants through the female line (ie the reconciliation suggested in paragraph 60 of EXCO paper XCC(90)). If the benefits of JD 205 continue to be restricted to patrilineal descendants only, HKG's policy would appear to be incompatible with Article 26 ICCPR. Note that it is HKG's policy which is (in all probability) incompatible, not the JD itself.
4.
It is important therefore that HKG do not claim to represent HMG's view when they assert that their present NT policies are
GENABS
CODE 18-77
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