TNAG-1918-FCO40-2722-Hong-Kong-Vietnamese-refugees-legal-aspects-1989 — Page 15

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CONFIDENTIAL

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26 JUN1989

From:

Scentages & State Bly

Sir Arthur Watts

Legal Adviser

Date: 9 June 1989

PS/PUS

CC: Mr Gillmore

Mr McLaren

Mr Colvin, SEAD

4

Mr Paul, Hong Kong Department Mr Haswell, Hong Kong Depart-

ment

Mrs Britton, UND

Mr Edwards Legal Advisers

VIETNAMESE BOAT PEOPLE:

LEGAL CONSIDERATIONS

1. I understand that it has been decided that unless certain conditions can be met by the international community, we shall put an end to the "first asylum" policy. In the light of meetings this morning, I also understand that it has not yet been decided quite what, in practice, will be involved in "putting an end" to this policy. Certainly some possibilities, such as physically preventing boats entering Hong Kong waters, could have very serious consequences. While options are still to some extent open, it might therefore be useful to identify very summarily the principal legal considerations, which are:

(a)

(b)

(c)

(d)

We are not under any international legal obligation to receive VBPS in Hong Kong, either under customary international law or under the 1951 Refugees Convention (which has not been extended to Hong Kong);

Turning away VBPs could, depending on the precise circumstances, put us in breach of our international human rights obligations not under the European Convention on Human Rights (which does not extend to Hong Kong) but under the UN Covenant on Civil and Political Rights which has been extended to Hong Kong;

·

It might be possible to invoke the "public emergency" provision enabling us to derogate from our obligations under the Covenant - but such a derogation would not affect our obligations under certain relevant Articles, by which we would remain bound. (We might be able to denounce the whole Covenant in relation to Hong Kong, but even if legally possible that would raise serious and much wider issues.)

Vietnam is under an obligation under customary international law to receive back into its territory such of its nationals as are not allowed entry into other States.

CONFIDENTIAL

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