12 -
recommends that rights of action as between private individuals should be handled by a Human Rights Commission
(see paras 27 -29 below)
The Reservations
25.
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Some representations have criticised the method by which the reservations made in respect of Hong Kong on some of the provisions of the ICCPR have been presented in the Draft Bill of Rights. An academic has pointed out the unusual practice of stating rights in Part II of the Bill and then nullifying some of them through reservations in the Part III: this practice is also applied inconsistently by,, for example, expressing the reservation on Article 1 of the ICCPR through omitting it entirely from Part II of the Bill. Some representations have recommended that some or all of the reservations should be removed. Others have commented that there is the logic of including those reservations that are reproduced in the draft Bill since the Bill is expressed to be for the purpose of implementing the ICCPR "as applied to Hong Kong".
Recommendation
The Ad Hoc Group considers that the reservations listed in the draft Bill are acceptable subject to periodic reviews and, if found unjustifiable, withdrawn.
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
26.
A number of representations have recommended that certain provisions in the International Covenant on Economic, Social and Cultural Rights be incorporated into the Bill of Rights. They have pointed out that some provisions in the ICESCR (e.g. the right to education, the right to work) are capable of being enforced by law. They have also noted that Article 39 of the Basic Law provides that the ICESCR, like the ICCPR, shall be implemented through the laws of the HKSAR and that Article 2 of the ICESCR refers particularly to legislative measures as one of the means by which State Parties should give realization to the rights in the Covenant. The Administration's view is that the rights in the ICESCR are collective rights which the states are required to achieve progressively: there is no obligation, as there is under the ICCPR, to guarantee individual rights, or to provide a remedy available to the individual against violation of the rights in the ICCPR. The Administration adds that some of the rights in the ICESCR are already provided for indirectly by the Bill of Rights, but that to legislate further would require an examination of the impact of these rights on the existing legal system and on the private sector. The Administration also thinks that some rights enshrined in the ICESCR are not justiciable. The Administration's written views on this subject are reproduced at Annex I.