TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 71

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substantial way it would have been likely to have come to the attention of the Legal Advisers and Research Department and to have stuck in the memory of one or two FCO officials such as Mr Fifoot or myself.

25.

To draw conclusions from the above information is really a matter for yourselves and the Legal Advisers. It seems to me that, while Hong Kong might argue that the problem of customary land rights in the New Territories was covered by their 1967 comment on Article 3 of the ICESCR (paragraph 5 above), some of Hong Kong's later comments, and a statement made by HMG based on Hong Kong's information, could be open to criticism for failing to take account of the New Territories land aspect. I have in mind, in particular:-

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a) the Hong Kong Government's advice that the inequality which they had previously reported had by 1974 "all but disappeared" (see paragraph 14 above); and perhaps

b) the statement that "no such legislation is in force in Hong Kong" included, in response to the question whether legislation had been passed to deprive anyone of equal protection under the law, among the supplementary information provided to the HRC in 1988 (see paragraph 22 above).

It also seems to me that if there is found to be a problem of inconsistency between New Territories land policies and Hong Kong's obligations under the ICCPR, this would raise the question of compatibility of the provisions in Annex III of the Joint Declaration concerning "old schedule lots, village lots, small houses and similar rural holdings" (JD 205-6) with the provision in Annex I concerning the ICCPR (JD 156). There could be a similar question with regard to Articles 39, 40 and 122 of the Basic Law.

Мараке

K C Walker

26 September 1990

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