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8.
It follows, I think, that the safest. way of implementing the 20% restriction before 1 July 1997 would
be to specifically authorise it in the Letters Patent.
Whether the UK would wish to make such an amendment that might conflict with its international obligations under the
ICCPR is another matter. As mentioned above, it would have
to be justified by reference to the peculiar circumstances
of Hong Kong and the need to ensure a smooth passage for the through train.
9.
Both the European Court of Human Rights and the UN
Human Rights Committee have articulated a concept of a
margin of appreciation which in essence limits the scope of
international judicial review
of the acts of national
authorities.
In the context of non-discrimination, the
European Court has said:
extent
"The contracting states enjoy a certain margin of
appreciation in assessing whether and to what
differences in otherwise similar situations
justify a different treatment in law; the scope of
margin will
vary according to the
the subject-matter and
this
circumstances,
background."
its
ز
While
which
there has
been
little
elaboration of the
vary in
"circumstances, the subject-matter and its background" upon
the margin of appreciation will
discrimination cases, the Court. has said that in areas
where the law is in a "transitional stage", states will be
accorded a wide margin of appreciation. That statement has
obvious relevance to Hong Kong's situation as it moves
towards 1997.