CONFIDENTIAL
Mr Haswell
ру
way be
Hong Kong Department KB 243/42
WH 312
From:
Date:
CC:
D M Edwards
Legal Advisers
7 June 1989
Mrs Britton, UND
Mr Wood, Legal Advisers Mr Paul, HKD
Mr McLaren
Sir A Watts
2.
VIETNAMESE BOAT PEOPLE
1. I had a telephone call this morning from Jeremy Matthews, the Attorney-General in Hong Kong. He told me that the Governor had asked him about certain legal aspects of the policy of first asylum (in particular whether the UK, in right of Hong Kong, was obliged to receive VBPs into Hong Kong) and that the Governor wished to be well prepared on the legal position when he attended at the FAC next Monday. Mr Matthews thought that there had been some minuting on this in the early part of 1988 and mentioned a UNHCR paper on the subject of 19 November 1987. I told Mr Matthews that we had already given this a good deal of thought and that our preliminary conclusion was that, as the 1951 Convention on the Status of Refugees had not been extended to Hong Kong, we were under no legal obligation to receive the Boat People into Hong Kong. I went on to explain that our legal difficulties would begin the moment following the VBPs' arrival in our jurisdiction, particularly if we were to decide that they would not be allowed to land. I explained that we had a number of relevant obligations under the UN Covenant on Civil and Political Rights (extended to Hong Kong) which would govern our treatment of VBPs once they arrived.
2.
I have now had an opportunity of looking out the papers dating FLAG A from early 1988. I attach the UNHCR paper of 19 November 1987, a FLAG Bminute of 11 February 1988 from Mr Berman, in which he criticises the FLAG C UNHCR paper, and Mr Fifoot's minute of 10 May 1988 in which he advised
that there is no legal obligation to accord the right of entry to Hong Kong to persons claiming to be refugees. I have nothing of substance to add to the conclusion drawn by Mr Fifoot that, the 1951 Refugees Convention not having been extended to Hong Kong, we are not legally obliged to receive VBPs.
3.
However, as I have said, our legal problems do not end there. The UN Covenant on Civil and Political Rights has been extended to Hong Kong and, under Article 7 of the Covenant, we are obliged to ensure that no-one within our jurisdiction is submitted to cruel, inhuman or degrading treatment. Article 6 of the Covenant provides that every human being has the inherent right to life and that no-one shall be arbitrarily deprived of his life. This too, according to the circumstances, could be relevant if we were to decide, for example, to push boats off as they arrived. Other articles of the Covenant, as
I have indicated in my previous minutes, could also be relevant if we decided to return VBPs to Vietnam.
Whenent
D M Edwards
Legal Counsellor K161 270 3058
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