Ms Barrett
Legal Advisers
Alivente.
RIDAHD/Tw
362
Reference
for RM 14/11
1
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HKO 241/1
RECE
14 NOV 1990
HONG KONG BILL OF RIGHTS: COMPATIBILITY BETWEEN ICCPR AND NEW TERRITORIES LAND POLICIES
(243
2387
1.
We discussed Mr Walker's minute of 26 September in the context of your discussions with Mr Stock and others during your visit to Hong Kong.
2.
Mr Walker's minute is an extremely useful record of the consideration given to this subject since 1967. It is valuable to have it pulled together in one paper. His researches have answered my original enquiry (whether on application to the ICCPR to Hong Kong or during negotation of the Joint Declaration HMG gave a view on the compatibility of existing NT land policies with Article 26 of the ICCPR). The answer is no and we can now respond to paragraph 5 of Hong Kong telno 2248 (attached).
3. Mr Walker's researches have, however, unearthed some wider issues. You will also recall that compatibility of NT land policies with the ICCPR was considered in FCO telno 1213 on UN Cedaw. Our conclusion was that Hong Kong could be criticised on all three NT land policies under the ICCPR/Bill of Rights. We suggested ways in which the inequalities could be removed. HKG have decided, however, to argue that there is no incompatibility and leave it to the courts to challenge this. In particular, in their memorandum for ExCo of 13 July, HKG stated "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 Convenant. The Government held the same view in 1984 when it accepted JD 156, 204 and 205." HKG could well be challenged on this statement during the passage of the Bill of Rights through LegCo. They would no doubt find it useful to have available Mr Walker's researches. I therefore intend to send Hong Kong the attached telegram and fax to them Mr Walker's minute. Grateful for your views.
CODE 18-77
31 October 1990
cc: Mr Walker, RAD
Mr Fifoot, Legal Advisers
PA Major (Ms) Hong Kong Department WH305
270 2655
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