TNAG-2487-FCO40-3618-Future-relations-between-Hong-Kong-and-China-1992 — Page 123

Reference

CODE 18-77

the ICCPR left by its repeal.

Public Line

As above, third sentence.

20.

Optional Protocol to the ICCPR

Coment

The ICJ recommend that the UK should, on behalf of HK, accept the Optional Protocol (page 107). According to the 1986 IRO Guidelines agreed by the JLG, we would have to consult the Chinese first, which makes the suggestion a non-starter. Since the Guidelines are confidential, we devised an opaque form of words which alludes to this dimension for the purposes of the Human Rights Committee hearing last year. I suggest you ask UND to dig this out.

CHAPTER XIV: DEFECTS IN THE BASIC LAW

Comment

21. (i) I agree with the ICJ's criticisms of the following Articles of the BL, including (where applicable) that of inconsistency with the JD: 17, 18, 19, 23, 45, 159, 160.

(ii) In the case of the following Articles, I agree with the ICJ's criticisms, but not that there is a clear breach of the JD: 43, 44, 49-52, 68, 158.

(iii) In relation to Article 158, the ICJ assert that the delegation of the Standing Committee's power of interpretation to the Courts does not override the general power of the SC to rule on the interpretation of the BL. I have also assumed this to be so, but, according to the book recently translated by Mr Wye, the Chinese appear to take a different view. (See my minute to Mr Cox on Amending the Basic Law of 9 June). We could quote from the Chinese book in response to the ICJ.

Public Line

I see no reason why we should seek to defend a Chinese law, except in so far as HMG has been criticised for "supine acquiescence" in relation to breaches of the JD. I do not think we should state our satisfaction to be any higher than that the BL in general corresponds to the JD. Presumably we could give some indication that there are a few points on which we were less than satisfied, and that this was made known to the Chinese. If I recall correctly, some allusion to this effect was made by Sir Geoffrey Howe to the HC and/or the FAC. Obviously, the extent to which we identify the areas of our dissatisfaction to organisations like the ICJ is a matter for you. Personally, I would see no objection to our giving them some indication.