TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 138

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Ms Major Hong Kong Dept

Reference.

CONFIDENTIAL

fa for 144/3

HKC 241/4

VIETNAMESE BOAT PEOPLE (VBP) AND THE ICCPR

1.

26

The

Thank you for forwarding your draft submission concerning amendments to the HK Immigration Ordinance. There is the fundamental difficulty that existing practice in Hong Kong could be not only incompatible with the domestic legislation currently in force, but also with the ICCPR (article 9). proposed amendments to the Immigration Ordinance will extend powers in domestic legislation to cover existing practices, but will not solve the second problem.

2.

If the Immigration Ordinance is to be amended according to the current timetable, this will take place shortly after the UK and Dependent Territories examination by the Human Rights Committee in New York. It would be disengenuous not to let them know of the impending legislation in Hong Kong.

3. The submission could perhaps be recast to draw out explicitly the options which are available to Ministers. These might include:

a) continuing with the existing arrangements

b) to extend the Immigration Ordinance, as recommended in

your draft submission

c) to do either a) or b), and to enter a derogation under

article 9 of the ICCPR.

3.

I

Each of these alternatives has its disadvantages. assume that (a) has been deemed to be untenable in light of the number of legal challenges to Hong Kong's policy. (b) appears to be logically inconsistent - while Hong Kong is introducing a Bill of Rights, which incorporates many elements of the ICCPR into domestic legislation, it is also contemplating the introduction of an ordinance which is possibly incompatible with the provisions of the ICCPR. (c) would attract wide international legal attention, and would send the wrong signals to the Chinese. (It may also be premature to consider derogating when we do not know that the amendments would be found to be in breach).

On the substance of the submission as it stands we have the following comments:

4.

para 3: the Secretary of State's comments in 1983 should be quoted in the body of the submission.

para 5:

as stated above, the simultaneous introduction of a

SJBABX

CONFIDENTIAL