Reference.
Lit
CODE 18-77
Comments
I agree with the ICJ that the system by election of functional constituencies may well be inconsistent with the ICCPR and Article 21 BOR. I minuted at some length on this subject to Major on 5 July 1991 in response to HK Telno 2092, and further exchanges with HKG followed. In short, the system is plainly inconsistent with Article 25 ICCPR and possibly Articles 2 and 26, and we would have to rely for our defence on our reservation to article 25(b). We have a plausible defence, but we could not be 100% confident that it would be upheld by a HK court or endorsed by the Human Rights Committee. HKG's statement that the system "is not inconsistent with the Ordinance" is too dogmatic for internal purposes, though is acceptable as a public line.
7.
Discrimination Against Women
Comment
The ICJ have identified a number of areas where concern about sex discrimination seems to be well-founded, and where it is still permitted, or even required, by law. Surprisingly, they did not pick up on the failure of the UK to extend the UN Convention on Discrimination against Women (CEDAW) to Hong Kong, but the omission leaves HMG and HKG very exposed to criticism on this subject.
HKG's commentary omits reference to CEDAW, though this has been the subject of numerous exchanges between us and them, and they were supposed to be giving attention to it after enactment of the BOR. I would suggest that the time is ripe for some further chasing.
CHAPTER V : THE RIGHT TO SELF-DETERMINATION UNDER INTERNATIONAL LAW
8.
This subject is primarily a matter for UND and their legal adviser, and I suggest you invite their comments and ask them to supply a line to take. I would of course be pleased to contribute to their efforts.
As I understand it, our attitude is rather cogently summarised by the paragraph on pages 48-49, which includes the sentence "The government has taken the view that it is not and never has been practicable to grant a right of self-determination to the people of Hong Kong and is therefore pointless to consider whether, as a matter of law, such a right exists".
Public Line
For the reasons pointed out in the above ICJ paragraph, the concoction of a public line which is legally correct, politically acceptable to Hong Kong, and the PRC, and which does not compromise our position on or offend Gibraltar and the Falkland Islands, is nigh on impossible.
For the purposes of the Human Rights Committee hearing in New York in April 1991, we prepared a defensive line on this point which