CONFIDENTIAL
057270
0
MDLOAN
IS POSSIBLE TO ARGUE, AS IN PARA 4 OF TUR, THAT THE RIGHT TO OWN PROPERTY IS NOT A HUMAN RIGHT AND FUNDAMENTAL FREEDOM AS REFERRED
TO IN ARTICLE 1 OF CEDAW. WE CONTINUE TO BELIEVE THAT THIS LINE
OF ARGUMENT IS PRESENTATIONALLY UNATTRACTIVE. THIS RIGHT IS SET
OUT IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, AND MIGHT BE SAID TO EXIST IN CUSTOMARY HUMAN RIGHTS LAW. THE CEDAW COMMITTEE
MIGHT LOOK TO THE UNIVERSAL DECLARATION AS AN APPROPRIATE SOURCE
OF RIGHTS. WE MIGHT THEREFORE BE OPEN TO CHALLENGE. HOWEVER, IF THIS SEEMS TO BE THE ONLY WAY FORWARD, WE WOULD BE WILLING TO CONSIDER RUNNING THE RISK. AFTER ALL, AS WE HAVE EXTENDED RATIFICATION OF THE ICCPR TO HONG KONG, SUBJECT TO OUR RESERVATIONS AND DECLARATIONS, WE ARE ALREADY RUNNING RISKS IN RELATION TO PROPERTY INHERITANCE AND RENT CONCESSIONS IN HONG KONG AS REGARDS THE ICCPR ASPECTS OF THE ARGUMENT. EXTENSION OF OUR RATIFICATION OF CEDAW TO HONG KONG MAKES NO LEGAL DIFFERENCE IN THIS RESPECT. (BUT WE SHOULD NOT UNDERESTIMATE THE POLITICAL
IMPACT: WE IMAGINE EXTENSION OF CEDAW WOULD SPARK INTEREST WHICH
HAS NOT IN THE PAST BEEN AROUSED BY THE ICCPR. AND THE PROPOSED BILL OF RIGHTS MIGHT CONTRIBUTE TO THIS.)
5. ON BALANCE THEREFORE WE THINK THERE IS SOME SCOPE FOR EXTENDING RATIFICATION TO HONG KONG SUBJECT TO THE EXISTING RESERVATIONS AND DECLARATIONS IN RESPECT OF OTHER DEPENDENT TERRITORIES. BUT, BEFORE GOING DOWN THIS PATH WE NEED TO LOOK CAREFULLY AT THE IMPLICATIONS. FIRST, ARE YOU ABLE TO ASSESS THE LIKELIHOOD OF A CHALLENGE? FOR EXAMPLE, IS THE VOCIFEROUS WOMEN'S LOBBY IN HONG KONG LIKELY TO PICK UP
THIS POINT AND SEEK A DECISION AS TO WHETHER YOUR PRESENT LAW AND POLICY IS CONTRARY TO THE ICCPR, CEDAW OR HONG KONG'S BILL OF RIGHTS? SECOND, WE NOTE FROM PARA 7 OF TUR THAT YOU WOULD BE PREPARED TO AMEND YOUR LAW AND POLICY IN THIS EVENT. COULD YOU GIVE FURTHER DETAILS ON HOW YOU WOULD ATTEMPT TO DO THIS AND WHAT THE IMPLICATIONS MIGHT BE, BEARING IN MIND THAT WE SHALL HAVE TO DISCUSS WITH THE CHINESE THE EXTENSION OF CEDAW AS A NEW IRO TO
HONG KONG AND THEY MAY WELL TAKE THE VIEW THAT IT IS NOT ENTIRELY
CONSISTENT WITH THE JD AND THE BASIC LAW.
6. WE APOLOGISE FOR THE DELAY IN REPLYING. BUT THIS IS CLEARLY
A COMPLEX ISSUE. GRATEFUL FOR YOUR VIEWS IN DUE COURSE.
HURD
YYYY
DISTRIBUTION
27
ΜΑΙΝ
27
LEGAL ADVISERS
LIMITED
HKD
PAGE 2 : CONFIDENTIAL
MR MCLAREN
UND
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