TNAG-1917-FCO40-2721-Interdiction-of-Vietnamese-refugees-at-sea-1989 — Page 67

CONFIDENTIAL

See HKK 243/3/1983)2)

HKK 243/3

RELIVED IN ABDARY NO. 517

AË 10 JAN1983

(21

Mr clift,

HKGD

DESK

INDEX

M

HONG KONG: CLOSED CAMPS FOR VIETNAMESE REFUGEES

1.

CAISTRY.

Taken

GB411

19

reply-

Please refer to paragraph 5 of Mr Burrow's minute of 23 December, to my minute of 29 December to UND and their reply of 29 December and its attachment.

with (20)

2. First, I should point out that the Report referred to by the Attorney General of Hong Kong in his letter of 20 December was presented to the UN Human Rights Commission in 1961, more than 20 years ago, at a time when the covenants were not in force and when there was virtually no relevant international jurisprudence. Moreover, the Committee established by the Commission consisted of only 4 of its members (Chile, Norway, Pakistan and the Philippines Chile and Pakistan being replaced later by Argentina and Ceylon). The Committee and its conclusions therefore hardly inspire confi- dence. I should be very surprised if any kind of habeas corpus existed in 3 of the 4 countries represented on the Committee at the time !

3.

The Attorney General of Hong Kong says (at the top of page 3 of his letter) that he thinks the European Court of Human Rights got it wrong in the case of X v UK. With respect, I do not think that is relevant. The point is that the Court reached a decision from which there is no appeal and I am convinced that the judgement would be likely to be followed (or at least seriously considered) by the UN Human Rights Committee should a similar case come before it. The European Court of Human Rights held that there had been a breach of article 5(4) of the Convention because the limited scope of judicae review available in habeas corpus proceedings in the UK failed to satisfy the rights guaranteed by the Convention. Nothing in the Report referred to by the Attorney General, nor anything in his letter causes me to change my view. I do not therefore think it would be safe for us to rely on the ability of closed camp det- ainees in Hong Kong to take habeas corpus proceedings there (as presently constituted) to satisfy our obligations under 9(4) of the Covenant.

31 December 1982

сс

Mr Freeland

Mr Burrows Mr Carter

Малой

DM Edwards

Legal Advisers WH 220 233 6112

CONFIDENTIAL