VNTIUENTIAL
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If the court
self-executing,
reservation.
court interprets Article 17 as non then the Article would be negated by the Hence no (legal) need for Article 17 and Clause 13 in the Bill. If, on the other hand, the court interprets Article 17
as self-executing (as is most likely), then the article will itself become further legislation and this raises the question whether We may then be going beyond what constitutes "the ICCPR as applied to HK".
40.
If Article 17 and Clause 13 are retained, this can be defended by the argument that the reservation does not necessarily preclude the enactment of further legislation. So far there has been no indication of Chinese objection to the inclusion of Article 17. On the other hand, deletion of Article 17 alongside Clause 13 should not give rise to doubts about the faithfulness of the BOR in translating the obligations under the ICCPR as applied to Hong Kong. The downside would be the possibility of provoking demand for deletions of other reservations, such as the one relating to the establishment of an elected Legislative Council.
41.
On balance, we recommend their deletion as this would have the added advantage of allowing us to deal with the problem described in paragraph 38 above independent of the interpretation that might be given to the construction "shall be probited" in Article 17 in view of Clause 13.
Changing reservations to exceptions (Part III)
42.
Some submissions are opposed to the existence of Part III in the White Bill for a number of reasons : that such a construction of legislation is unusual; that the
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