therefore, reside in the Central Authorities. But it does not follow that the proclamation of an emergency will activate the fourth paragraph of Article 18 of the BL. The situation could well be one where there is very serious turmoil in other parts of China and even some disturbance in the SAR, but the situation in the SAR is not beyond the control of the SAR authorities. In such a case it would be the SAR authorities which would need to take any measures in derogation of the BOR. This would not be inconsistent with the reference to the States Parties in Article 4 of the Covenant since that reference must be a reference to the appropriate authorities according to the constitutional arrangements of the particular state. (Again, this is an answer to any Chinese sensitivities about this Article.) Of course, if the emergency were to pass beyond the control of the SAR authorities, then the fourth paragraph of Article 18 of the BL would come into play.
8. I agree, however, as I made clear in my minute of 10 May, that there are good (Chinese) reasons to avoid repeating Article 4 of the Covenant in the BOR. The alternative I suggested of an additional sentence to Clause 4(1) would provide a sufficient reference to the possibility of derogation but would avoid appearing to regulate the exercise by the Central Authorities of the power to derogate which may be a sensitive
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sovereignty" area for the Chinese. That alternative also avoids any need to include an interpretation provision ( Clause 5(3)) which for the post 1997 period is unnecessary. For the period up to 1997, however the position is more complicated. Two of the possible ways of dealing with it are: (a) to leave in a definition (?in Clause 2), but to provide that it shall expire on 30 June 1997; or (b) to omit a definition and leave it to the United Kingdom to take the necessary steps of proclaiming an emergency which activates the power of derogation as it has done in other colonial situations; this, however, requires further
examination.
Remedies
9.We do not recall that this issue has arisen in Article 13 proceedings under the ECHR. It could not arise in individual applications as regards interim declarations since an applicant is required to exhaust domestic remedies. In either case the answer of the supervisory organs of a human rights regime if the issue were raised could well be that the state has a margin of appreciation as to remedies and if some other remedy were efficacious then the unavailability of the remedy of injunction would not be of significance. They could take the view that compensation was a sufficiently efficacious alternative.
10. My own view based on what I have written above is
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