But
that I do not think the absence of one particular remedy against a particular defendant would, if it can be objectively justified and there is an efficacious alternative, be inconsistent with the Covenant. if the law remains as it is in Hong Kong, that would fall to be decided by the courts. The Bermuda formula which I suggested in para 7 of FCO Tem would enable the courts to issue an injunction if they were of a different view. Hong Kong could also legislate to remove the present immunity.
Third party rights
This
11. Article 2 of the Covenant requires states parties "to respect and ensure" the various rights set out in the Covenant without discrimination and to ensure that everyone has an effective remedy. means that, for a violation of the Covenant, whether by public authorities or by a private person ( and although some rights are only capable of being violated by the state or its organs, others are capable of being violated by private persons), there must be a right of recourse against someone. Clearly there must be a right of recourse against the state, its agents and officials for their own acts;, the Covenant would be meaningless without it. It is not apparent that there must be a right of recourse against a private person whose activity causes another to be deprived of a right accorded by the Covenant. An alternative would be a right of recourse against the state, not for its own failure to "respect" the rights, but for a failure to "ensure" the rights.
12. The Covenant itself does not directly impose obligations on private persons so as to make them liable in domestic law for conduct which constitutes a failure to accord to another the rights specified in the Covenant. (The drafting of the fifth preambular paragraph of the Covenant appears to recognise this). Parties to the Covenant may however impose duties on private persons in discharge of their own obligation to "ensure" rights; and supervisory organs of human rights regimes may determine that the only way in which a State Party can effectivly discharge its obligations is to impose in its domestic law a "Covenant" obligation on private persons and make them directly answerable for a violation ( See the judgement of the European Court of Human Rights in X and Y against the Netherlands, 26th March 1985). The obligation need not be couched in the same language as the Covenant or, indeed, be expressed to be imposed in pursuance of the Covenant, so long as it works to the same end; the English law of defamation serves the same ends as the provisions for the protection of honour and reputation and the right to freedom of expression set out in the Covenant.
13. The question is therefore whether if a state ( and I use the word to include Hong Kong) adopts a bill
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