TNAG-1917-FCO40-2721-Interdiction-of-Vietnamese-refugees-at-sea-1989 — Page 10

CONFIDENTIAL

1915.

Miss Eliot

HKB 243/34

Hong Kong Department

WH 312

From:

D M Edwards

Legal Advisers

Date:

19 May 1989

3

HONG KONG:

VIETNAMESE BOAT PEOPLE:

INTERDICTION AT SEA

2

Please refer to your minute of 16 May. Thank you for putting together the papers from 1982 when similar questions were considered.

1.

2. You now need to prepare a draft reply to Hong Kong telno 1516 in which you will no doubt remind Hong Kong of the previous occasions (in particular 1982) when this kind of proposal was considered. The various points arising in the papers you have referred to in paragraph 4 of your minute of 16 May should be repeated to Hong Kong.

3. So far as the legal considerations are concerned, proposals such as those outlined in paragraph 2 of Hong Kong telno 1516 would clearly have implications for the UK's obligations under Article 10(1) of the International Covenant on Civil and Political Rights. The main points in this connection are contained in Mr Burrows' minute of 9 September 1982 (Flag BB). In addition, I believe that questions could also be raised in connection with Articles 6 and 7 of the Covenant. Article 6(1) provides that:

"Every human being has the inherent right to

life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

The first sentence of Article 7 provides that:

3.

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'

It seems to me quite possible that, if Hong Kong turned back boats with Vietnamese on board, this could well result in the death of one or more of its occupants (in which case Article 6 could be relevant). Again, the subsequent suffering caused to boat people by pushing them out to sea again could well amount to cruel, inhuman or degrading treatment (in which case Article 7 would be relevant). There could also be problems under one or other of the Articles if the boat people were ill-treated on their return to Vietnam. We would not, presumably, have received any undertakings from the Vietnamese Government in relation to these people (as opposed to voluntary returnees).

!

4. As you are aware, when this proposal was looked at in Hong Kong in 1982, various measures for re-provisioning the boats before pushing them out to sea again were contemplated. Depending on the particular circumstances, it is possible that such measures could

CONFIDENTIAL

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