TNAG-1917-FCO40-2721-Interdiction-of-Vietnamese-refugees-at-sea-1989 — Page 52

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Mr Hoare HK&GD

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HONG KONG : CLOSED CAMPS FOR VIETNAMESE REFUGEES

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1. Mr Freeland, Mr Edwards and I have discussed your minute of 23 September and the papers attached to Mr Edwards' minute of 10 August. Since we have already been questioned in Parliament, and Justice has now taken up the matter, we may expect substantial difficulty if we do not solve the problems created by Hong Kong's recent law.

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2. Mr Edwards and I have of course already advised that the draft bill which was shown to us would infringe Article 9 of the International Covenant on Civil and Political Rights of 19 December 1966 (TS No 6 of 1977). We did not at the time know about Attached

the Rules to which Justice now refer in their letter to the to 206

(2)- Attorney General of Hong Kong of 14 July. The existence of such

Rules now raises the question of the compatibility of the law with Article 10 of the Covenant which provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although we have not seen the law as finally enacted or the text of the Rules there seems to be a clear breach of Article 9 and possibly a breach of Article 10 as well.

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3. So far as concerns Article 9, it is possible that Hong Kong may have been misled, on reading paragraph 2 of FCO telegram number 488 of 28 June, into thinking that an administrative remedy of the kind referred to in Article 2(3) of the Covenant, would be sufficient. That is however not so. Article 2 requires the establishment of machinery to deal with breaches of the Covenant. However the substantive provision is in Article 9(4) which requires that a person who is deprived of his liberty shall be entitled to take proceedings before a court. FCO telegram number 482 of 25 June,

and Mr Edwards's minute of the same date, explain why such a court must be enabled to review the merits of a decision taken by an administrative authority to imprison a person.

4. I should also mention one of the reservations we made when ratifying the Covenant. This reads:-

"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly,

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CONFIDENTIAL