CONFIDENTIAL
105454
MDHIAN 7058
3.
ARTICLE 26 OF THE ICCPR, CONTAINS A BLANKET PROVISION AGAINST DISCRIMINATION BETWEEN INDIVIDUALS IN THEIR RELATIONS WITH EACH OTHER ON ANY OF THE STATED GROUNDS. THIS WOULD BE A
MOST UNFORTUNATE INTERPRETATION. IF THERE IS ANY REAL CHANCE THAT ARTICLE 23 WILL CONSTITUTE SUCH A BLANKET PROHIBITION, EXCO WOULD HAVE TO BE ALERTED, SINCE IT MIGHT THEN WISH TO
EXCLUDE PRIVATE INDIVIDUALS FROM BEING BOUND BY ARTICLE 14
UNTIL COMPREHENSIVE LEGISLATION WERE ENACTED IN RELATION TO
IT. WE WOULD THEREFORE PREFER TO LEAVE ARTICLE 23 ALONE.
WE AGREE THAT THE BILL OF RIGHTS SHOULD BE DIRECTLY APPLICABLE AS LAW (YOUR TELNO 1007, PARAGRAPH 4). WE HAVE BEEN ADVISED THAT, DRAWING ON EXPERIENCE IN THE NETHERLANDS AND BELGIUM, THIS SHOULD PROVE TO BE SO IN THE CASE OF ICCPR ARTICLES 9(2), 14(3)(F), 18(3), 26 AND 27 ALTHOUGH THE COMMISSIONED PAPER INDICATES SOME DOUBT ARISES IN RELATION TO ARTICLES 12, 13, 20 AND 23 IF THEY ARE LEFT AS THEY ARE. WE WERE AT FIRST THEREFORE MINDED TO MAKE CHANGES OF THE KIND YOU SUGGESTED, SUBJECT TO THE POINTS IN PARAGRAPH 2(3) ABOVE. SHOULD ARTICLE 17 AND CLAUSE 13 REMAIN, THERE WOULD BE PARTICULAR FORCE IN PURSUING THOSE CHANGES BECAUSE IN SO FAR AS CLAUSE 13 SEEMS EXPRESSLY TO RENDER ARTICLE 17 DIRECTLY APPLICABLE, IT MIGHT BE ARGUED THAT THE ABSENCE OF A SIMILAR PROVISION IN
RELATION TO OTHER ARTICLES LENDS EMPHASIS TO THE FEARS YOU RAISE.
BUT WE HOPE THAT ARTICLE 17 AND CLAUSE 13 WILL COME OUT.
•
4 HOWEVER, GIVEN OUR DESIRE TO LEAVE ARTICLE 23 ALONE AND THE REASON FOR THAT, WE ALSO DO NOT WISH ITS MEANING TO BE CHANGED BY A COMPARISON OF ITS UNALTERED TERMS WITH THE FACT OF ALTERATIONS TO OTHER ARTICLES. GIVEN, FURTHER, THE NEED FOR THE COURTS TO MAKE SENSE OF THE ARTICLES IN DOMESTIC TERMS, WE FEEL THAT, SUBJECT TO WHAT HAPPENS TO ARTICLE 17 AND CLAUSE 13, THE BALANCE OF ADVANTAGE LIES WITH LEAVING THE TEXTS ALONE AND NOT TO MAKE ANY OF THE
CHANGES SUGGESTED.
FORD
YYYY
2
PAGE
CONFIDENTIAL
No comments yet.
Private notes are available after approval.