CONFIDENTIAL
074771
MDHOAN 1506
AND OBJECTIVE CRITERIA UNQUOTE.
IF YOU CONSIDER THIS LINE STILL
SUSTAINABLE, WE SHOULD BE GRATEFUL FOR YOUR MORE DETAILED ARGUMENTS.
7. AS YOU KNOW, WE HAVE ALWAYS BEEN RELUCTANT TO ARGUE THAT THE RIGHT TO OWN PROPERTY IS NOT A FUNDAMENTAL RIGHT OR FREEDOM BUT HAVE BEEN PREPARED TO DO SO (PARA 4 OF MY TELNO 253). THE COMMENTS QUOTED IN PARA 7 ABOVE, HOWEVER, REINFORCE OUR VIEW THAT THIS ARGUMENT WOULD NOT BE SUSTAINABLE IN RELATION TO ARTICLE 26 OF THE ICCPR.
CEDAW
IN OUR VIEW THERE IS LESS RISK OF A VIOLATION BEING ESTABLISHED UNDER CEDAW THAN UNDER THE ICCPR/BILL OF RIGHTS SINCE THERE IS NO SPECIFIC ARTICLE CONCERNING LAND RIGHTS. BUT THE RENT CONCESSION POLICY AND SMALL HOUSE POLICY ARGUABLY VIOLATE ARTICLES 2(D) AND (F). BOTH POLICIES MIGHT BE DEFENSIBLE UNDER THE TERMS OF THE UK RESERVATION IN RELATION TO (F) (IF WE ESTABLISHED THEY ARE APPLIED BY VIRTUE OF $13 NTO). THE UK RESERVATION DOES NOT APPLY TO (D) BUT IF CHALLENGED IT COULD BE ARGUED THAT (F) NOT (D) IS THE APPROPRIATE PROVISION. THE LAND SUCCESSION LAW MIGHT VIOLATE ARTICLE 2(F) WHICH IS HOWEVER COVERED BY THE RESERVATION. ARTICLES 5(A) AND 14(2) (G) ARE ARGUABLY RELEVANT. HOWEVER, WE NOTE THE VIEW IN PARA 2 OF TUR THAT THE ECONOMIC POLICY ARGUMENT COULD ONLY BE USED IN RELATION TO THE SMALL HOUSE POLICY. WE SHOULD ALSO STRESS THAT THE SPIRIT OF THE UK RESERVATION TO 2(F) IS THAT YOU WOULD KEEP THE POLICIES UNDER REVIEW WITH A VIEW TO CHANGING THEM WHEN OVERRIDING ECONOMIC CONCERNS ALLOWED IT. WE THEREFORE STILL
NEED TO ADDRESS HOW YOU WOULD DO SO.
9.
FINALLY, YOUR PARA 11: ALTHOUGH WE CANNOT APPLY NEW RESERVATIONS ON EXTENSION TO HONG KONG, IF ANY OF THE EXISTING RESERVATIONS ARE INAPPROPRIATE FOR YOU WE SEE NO REASON WHY THEY HAVE TO BE INCLUDED IN THE EXTENSION.
OPTIONS FOR ELIMINATING DISCRIMINATION
10. IT FOLLOWS FROM THE ABOVE THAT WE ARE AT RISK OF CHALLENGE ON ALL THREE POLICIES UNDER THE ICCPR/BILL OF RIGHTS AND THAT EXTENSION OF CEDAW TO HONG KONG WOULD MAKE NO MATERIAL DIFFERENCE. EXTENSION OF CEDAW IS ALSO UNLIKELY SIGNIFICANTLY TO INCREASE THE PUBLICITY SURROUNDING THESE ISSUES TO WHICH THE BILL OF RIGHTS HAS GIVEN RISE. FOR THE REASONS IN PARA 1(A) OF
PAGE
3
CONFIDENTIAL
No comments yet.
Private notes are available after approval.