Memorandum Prepared for the Human Rights Committee on the Fourth Periodic Report

Memorandum Prepared for the Human Rights Committee on the Fourth Periodic Report by the United Kingdom of Great Britain and Northern Ireland in Respect of Hong Kong under the International Covenant on Civil and Political Rights

Lawyers Committee for Human Rights

A Report of the Lawyers Committee for Human Rights
October 1996

Table of Contents

Introduction
Analysis of Relevant Treaties, Agreements and Chinese Laws
Specific Areas of Concern
Conclusions and Recommendations

I. Introduction

After nearly a century and a half of British rule, the Crown Colony of Hong Kong becomes a Special Administrative Region of the People's Republic of China (PRC) on July 1, 1997. As this territory of approximately 5.5 million inhabitants approaches its scheduled transfer of sovereignty, the Lawyers Committee for Human Rights has serious concerns regarding the prospects for the continued protection of human rights, democratic governance and the rule of law in Hong Kong. In particular, the Committee believes that it is essential for adequate arrangements to be made for regular reports to be submitted to the Human Rights Committee on human rights practices in Hong Kong after the transfer of sovereignty. The Committee appreciates the concern that the Human Rights Committee has displayed for these issues, as exemplified by its request that the United Kingdom of Great Britain and Northern Ireland (UK) submit a brief additional report on human rights developments in Hong Kong to its 58th session in Geneva.

In recent months the Chinese government has persistently threatened to dismantle the advances in human rights protection and democratic reform that Hong Kong has witnessed over the past few years. This progress has included: the enactment of the Bill of Rights Ordinance (BORO); amendments to various laws conforming such legislation to the requirements of the International Covenant on Civil and Political Rights (ICCPR); the passage of anti-discrimination legislation; improvements to the legal aid system; the abolition of the death penalty; and enhanced efforts regarding human rights education. While these reforms are commendable, further steps need to be taken both prior to and after the transfer of sovereignty to ensure the full protection of human rights in Hong Kong.

This memorandum analyzes relevant treaties, agreements and PRC laws and argues that the Chinese government is legally obligated to uphold and support the continuation of such reforms following its resumption of sovereignty in July 1997 so that the people of Hong Kong enjoy a level of human rights protection consistent with international standards. This memorandum then addresses areas of particular concern and concludes with a number of recommendations designed to promote a stable and protective human rights environment in Hong Kong.

II. Analysis of Relevant Treaties, Agreements and Chinese Laws

A. International Human Rights Treaties and the Law of Succession

The British government has extended to Hong Kong the applicability of various international human rights treaties, including the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976, the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) in 1992, and the Convention on the Rights of the Child in 1994. The United Kingdom is currently considering the extension of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

At the broadest level, an analysis of the potential applicability of these treaties to Hong Kong following the PRC's resumption of sovereignty requires an examination of the international legal doctrine of state succession. This doctrine governs the extent to which a state assuming sovereignty over a particular territory must also assume the international legal obligations the predecessor state possessed with respect to such territory. Because state succession arises in the context of diverse and complex circumstances (including, for example, the voluntary merger of two existing states, the dissolution of one state into numerous states, and the creation of a newly independent state from a colonial territory), the parameters of this doctrine have never acquired widespread acceptance. In fact, as of June 1996, only 14 nations had ratified the Vienna Convention on Succession of States in Respect of Treaties, which was opened for signature in 1978 and requires 15 ratifications before it enters into effect.

In the context of human rights treaties, however, there appears to be a growing consensus regarding the obligations of successor states. It has been increasingly argued that human rights treaties should devolve with the particular territory because such treaties are not merely agreements between states, but more importantly regulate the behavior of a state toward its inhabitants and guarantee such inhabitants certain rights and freedoms irrespective of issues related to sovereignty. The chairpersons of committees established pursuant to various human rights treaties, for example, adopted this view at a meeting in September 1994 with respect to the obligations of newly independent states. Furthermore, as the Human Rights Committee, established to monitor compliance with the ICCPR, recently held, "once the people living in a territory find themselves under the protection of the [ICCPR], such protection cannot be denied to them by virtue of . . . its coming within the jurisdiction of another state. . . ." The U.N. Security Council has echoed these sentiments with respect to treaties of humanitarian law, concluding that the parties to the conflict in the former Yugoslavia are bound by the Geneva Conventions of August 12, 1949, irrespective of whether these parties have formally acceded to such treaties, because the predecessor state of Yugoslavia was a signatory to the Geneva Conventions.

Recent jurisprudence regarding human rights treaties and state succession has arisen in the context of newly independent states. Because Hong Kong will not be acquiring independence but rather will be transferred with a "high degree of autonomy" to a state that is not a party to most human rights agreements, the applicability of such recent jurisprudence to Hong Kong and the PRC is less clear. However, the Joint Declaration signed in 1984 by the PRC and the UK renders reliance upon the doctrine of state succession unnecessary to ensure the continued legal applicability of human rights treaties in Hong Kong following the Chinese resumption of sovereignty in 1997.

B. The Joint Declaration

The Joint Declaration unequivocally states that the provisions of the ICCPR and ICESCR "as applied to Hong Kong . . . shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region" (HKSAR) following the PRC takeover despite the fact that the PRC is not a signatory to either of these treaties. The qualifying language "as applied to Hong Kong" is generally regarded as indicating that these international covenants will continue to operate in the HKSAR subject to the declarations and reservations entered by the UK, which were particularly significant with respect to the ICCPR. Most notably, the British government reserved the right to derogate from: protections in Article 1 of the ICCPR regarding the right to self-determination; guarantees under Article 25(b) regarding universal franchise and free elections, to the extent this article may require the establishment of an elected executive or legislative branch; protections under Article 10 regarding the rights of juveniles in detention; and guarantees in various articles regarding nationality, citizenship and freedom of movement.

The Joint Declaration also provides that Hong Kong will enjoy a "high degree of autonomy"; that the laws in force in Hong Kong will remain basically unchanged; that Hong Kong will be "vested with executive, legislative and independent judicial power including that of final adjudication" in a court of final appeal; that Hong Kong's chief executive will be appointed by the PRC after elections or consultations in Hong Kong; and that basic rights and freedoms will be ensured. This document also provides that the PRC will enshrine such governing principles within the Basic Law, the HKSAR's future "Constitution."

Ratified by both the PRC and the UK, the Joint Declaration is a treaty giving rise to rights and obligations under international law, and is therefore registered with the United Nations pursuant to Article 102 of the U.N. Charter.

C. The Basic Law

Adopted by the National People's Congress of the PRC on April 4, 1990, the Basic Law will become effective July 1, 1997, replacing the Letters Patent as Hong Kong's "Constitution." The Basic Law incorporates the principles and policies of the Joint Declaration, including guarantees regarding the continued applicability of the ICCPR and ICESCR, an independent judiciary with a court of final appeal, and the maintenance of existing laws (except those that contravene the Basic Law). The Basic Law also reiterates the rights guaranteed in the Joint Declaration and adds freedom from arbitrary arrest, detention or imprisonment and a prohibition against torture and arbitrary deprivation of life. Furthermore, Article 8 of the Basic Law explicitly states that this bilateral agreement will constitute the paramount law of the HKSAR.

While certain provisions of the Basic Law appear to ensure that the people of Hong Kong will continue to enjoy a level of human rights protection relatively consistent with international standards, other provisions could potentially undercut these guarantees. Such concerns will be addressed further in Section III below.

D. The Bill of Rights Ordinance

Enacted on June 8, 1991, the Bill of Rights Ordinance (BORO) was designed to incorporate the guarantees of the ICCPR into domestic Hong Kong law. However, it contains certain "exceptions and savings" intended to reflect the declarations and reservations entered by the UK when it extended the ICCPR to Hong Kong. Provisions of the BORO furthermore mandate the repealing or amending of pre-existing laws that are deemed inconsistent with the BORO. This requirement has produced the effective nullification of laws authorizing the suppression of publications and imposition of martial law (Emergency Regulations Ordinance), sanctioning sweeping restrictions on public meetings (Public Order Ordinance), and requiring the registration of private associations (Societies Ordinance).

A critical issue with respect to the BORO concerns its applicability following the PRC's resumption of sovereignty. Asserting that the BORO contravenes the Basic Law, the Chinese government has repeatedly declared it will overturn this ordinance on July 1, 1997. The PRC has been particularly critical of the provision requiring the amendment or repeal of all pre-existing legislation deemed inconsistent with the BORO, and the Preliminary Working Committee, set up by the PRC to advise on the transition, has recommended that all repealed laws should be reinstated in July 1997.

However, Chinese government criticisms of the Bill of Rights Ordinance are without legal foundation. As previously discussed, Article 8 of the Basic Law guarantees that all Hong Kong laws will remain in force when it becomes effective on July 1, 1997, except for those that contravene the Basic Law. Because the BORO incorporates the ICCPR "as applied to Hong Kong" and because the Basic Law provides for the continued applicability of the ICCPR "as applied to Hong Kong," it is difficult to see how the BORO can be construed as contravening the Basic Law. In arguing that it does so by virtue of its "superior status" to other laws, the Chinese government ignores the fact that the BORO is no more than a mechanism to implement the standards set forth in the ICCPR which is expressly enshrined in the Basic Law.

Chinese government arguments against the BORO provision mandating the amendment or repeal of certain pre-existing laws are also without foundation. The provisions of the BORO addressing individual rights virtually mirror the ICCPR "as applied to Hong Kong." Therefore, the determination that a particular ordinance conflicts with the BORO is essentially a decision that it also violates the ICCPR "as applied to Hong Kong." Because Article 39 of the Basic Law incorporates the ICCPR "as applied to Hong Kong" and Article 8 provides that all laws contravening the Basic Law shall be abolished, it can be argued that the Basic Law itself would also mandate the repeal or amendment of the ordinances mentioned above.

III. Specific Areas of Concern

As noted above, the Chinese government has threatened to dismantle many of the recent advances in human rights and democratic reform that have occurred in Hong Kong, in particular the enactment of the Bill of Rights Ordinance. The following discussion highlights a number of areas of particular concern regarding the future human rights environment in the HKSAR.

A. Reporting Under the ICCPR and ICESCR

The ICCPR and ICESCR require that parties periodically report to the Human Rights Committee and the Committee on Economic, Social and Cultural Rights (Economic Committee), respectively, regarding their compliance. These reporting obligations are considered integral to the international human rights regime, and the government of the United Kingdom has filed reports with the two committees on several occasions.

As previously discussed, both the Joint Declaration and the Basic Law require the PRC to continue the application of the two covenants to the HKSAR following the transfer of sovereignty. No exceptions are made with respect to the articles that mandate periodic reports regarding compliance with the covenants (article 40 of the ICCPR and article 16 of the ICESCR). Therefore, the PRC can fulfill its obligations pursuant to the Joint Declaration and Basic Law only if scheduled reports continue to be made to the Human Rights Committee and Economic Committee. In theory, either the PRC or HKSAR government could file such reports, but the PRC's failure to ratify either covenant has been regarded as presenting legal obstacles to PRC reporting. (It should be noted that no such obstacles should arise in connection with reporting obligations under the Torture Convention, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), or the Convention on the Rights of the Child to all of which China is a State Party.)

The Human Rights Committee and the Economic Committee have both attempted to remove such impediments by declaring their willingness and competence to receive and review reports filed following the PRC resumption of sovereignty. The Economic Committee has explicitly stated it would accept reports either from the PRC or HKSAR government. However, the Chinese government has indicated that it will not permit reports to be made to these committees. As one PRC official has declared, "after 1997, Hong Kong will not be a sovereign territory. From China's point of view, China is not a signatory of the ICCPR and so has no obligation to submit any reports."

B. Judiciary and Court of Final Appeal

The Joint Declaration and Basic Law both guarantee that the HKSAR will have an independent judiciary with the power of final adjudication. Furthermore, on June 9, 1995, the British and Chinese governments entered into an agreement establishing a Court of Final Appeal (CFA) to ensure the continued availability of a judicial tribunal with the power of final judgment following the transfer of authority. The terms of this bilateral agreement were subsequently enacted in the context of Hong Kong implementing legislation.

This agreement and implementing ordinance, however, contain several problematic provisions that potentially conflict with the PRC's treaty obligations to support an independent judiciary in Hong Kong with final adjudicative power. For example, the CFA agreement and ordinance exempt from the jurisdiction of the CFA "acts of state such as defense and foreign affairs," without simultaneously clarifying that "acts of state" is a term of art to be interpreted narrowly according to common law precepts and tradition. The possibility that the PRC will expansively interpret "acts of state" to disempower the CFA from ruling on various important issues, including human rights matters, is compounded by Article 158 of the Basic Law. This article also excludes "acts of state" from HKSAR judicial jurisdiction and vests the ultimate power of interpretation of the Basic Law in the Standing Committee of China's National People's Congress, while ambiguously granting HKSAR courts jurisdiction only in cases "within the limits of the [HKSAR's] autonomy." Thus, the Standing Committee appears to have the unreviewable power to determine which matters constitute "acts of state" and which cases fall within the limits of the HKSAR's autonomy.

PRC treaty obligations to maintain a vibrant and independent judiciary in Hong Kong are also threatened by provisions of the CFA agreement and ordinance regarding the judicial appointment process and the composition of the CFA. With respect to the appointment process, it appears that the HKSAR's Chief Executive will first designate members of a Judicial Officers Recommendation Commission (JORC) from among prominent Hong Kong lawyers. Upon the recommendation of JORC and the approval of the Legislative Council, the Chief Executive will select judges of the CFA. This selection process, however, vests significant power with the Chief Executive, who will be appointed by the PRC government, and thus presents the danger that judges of the CFA will not be independent but instead will, in effect, be chosen from Beijing. With respect to the actual composition of the CFA, the agreement and ordinance deprive the court of the flexibility and discretionary power contemplated in the Joint Declaration and Basic Law by limiting the number of foreign judges on the court to one out of five, instead of allowing the CFA the freedom to invite judges from other common law jurisdictions as it deems necessary.

Finally, the CFA agreement and ordinance unfortunately delay the establishment of the court until after the transfer of sovereignty, thus depriving it of the opportunity to gain credibility and experience and to establish precedents grounded in the common law tradition that would help provide continuity and stability to the legal system in Hong Kong.

In sum, the CFA agreement and ordinance potentially compromise PRC obligations under the Joint Declaration and Basic Law to support a competent, independent and impartial judiciary following the transfer of sovereignty. These issues in turn will have serious implications for the rule of law in Hong Kong and for the rights and liberties that the people of Hong Kong currently enjoy.

C. Executive and Legislative Branches

When the government of the United Kingdom extended the ICCPR to Hong Kong, it entered a reservation to Article 25, which guarantees democratic participation in politics, to the extent that this article requires an elected executive or legislative branch. The Basic Law continues the application of this reservation following the transfer of sovereignty and explicitly provides for legislative and executive branches that are not constituted by fully democratic elections. The first Chief Executive of the HKSAR, for example, will be appointed by the PRC government based on the "recommendation" of a committee composed of 400 Hong Kong residents.

The Human Rights Committee has repeatedly expressed concern and opposition to the British reservation to Article 25 and has consistently criticized the electoral system in Hong Kong. In its concluding observations on the UK's fourth periodic report, for example, the Committee explicitly criticized the failure of the British government to provide for a fully elected Legislative Council and declared discriminatory the use of "functional constituencies" on the grounds that such a system "gives undue weight to the views of the business community." The Human Rights Committee concluded by recommending that "immediate steps be taken to ensure that the electoral system be put in conformity with articles 21, 22 and 25 of the [ICCPR]."

The PRC further dampened prospects for democracy in Hong Kong on December 28, 1995, when it announced the composition of the 150-member Preparatory Committee, which will designate the method of constituting the first Legislative Council (Legco) following the transfer of sovereignty, and will appoint the HKSAR's Chief Executive as well as approximately 30 key executive officials. The Chinese government packed the Preparatory Committee with pro-PRC residents of Hong Kong, notably failing to include even one member of Hong Kong's Democratic Party on the committee, despite the fact that this party won the majority of the contested seats last September in Hong Kong's first mostly democratic elections for the Legco. On March 24, 1996, the Preparatory Committee voted to replace the democratically elected Legco with an appointed provisional legislature upon the transfer of sovereignty, thereby extinguishing hopes that the current members of the Legco would be entitled to complete their election terms, which extend past July 1, 1997. The one member of the Preparatory Committee who voted against this decision was subjected to fierce criticism by Beijing officials.

In sum, the British reservations to the ICCPR, the provisions of the Basic Law and the initial actions of the Preparatory Committee all bode ill for democratic governance in Hong Kong following the PRC's resumption of sovereignty.

D. Non-governmental Organizations

Locally based non-governmental organizations (NGOs) have played a pivotal role in the struggle for human rights in Hong Kong. Pressure from NGOs, for example, catalyzed the enactment of the Bill of Rights Ordinance, and NGOs have helped to focus attention on current human rights concerns in Hong Kong, particularly through their contributions and submissions to the Human Rights Committee.

While the ICCPR "as applied to Hong Kong," the Joint Declaration and the Basic Law all guarantee freedom of association, Article 23 of the Basic Law requires the HKSAR to enact laws "to prohibit foreign organizations . . . from conducting political activities in [the HKSAR], and to prohibit political organizations . . . of [the HKSAR] from establishing ties with foreign political organizations. . . ." If the PRC government chooses to interpret the advocacy of human rights as "political activity," it could force the HKSAR government to enact legislation suppressing non-governmental organizations and preventing local Hong Kong associations from accessing the information and expertise possessed by foreign NGOs. The effect of such measures on human rights and democratic rule in Hong Kong would be severe.

E. Freedom of Expression and the Press

Article 23 of the Basic Law requires the HKSAR to enact laws prohibiting any acts of treason, secession, sedition, or subversion against the government in Beijing, or theft of state secrets. There appears to be no clear legal definition of what constitutes "state secrets," and the term seems to be used arbitrarily by Chinese authorities. A recent example of the arbitrariness with which the PRC government defines "state secrets" arose in the case of Xi Yang, a Beijing-based journalist for Hong Kong's Ming Pao newspaper. Pursuant to the PRC's State Security Law, this journalist was convicted of the "theft of state secrets" merely for reporting on Chinese official plans to sell gold and raise interest rates. Xi Yang is currently serving a 12-year jail sentence in China.

Substantial concern exists that the PRC government will rely upon Article 23 of the Basic Law to suppress freedom of expression and freedom of the press and to criminalize communications the government deems threatening and thus "counter-revolutionary." As the PRC's senior official on Hong Kong affairs, Lu Ping, recently stated, "it's all right if reporters objectively report, but if they advocate it is an act. It has nothing to do with freedom of the press." His reference to "an act" appeared to invoke the prohibitions in Article 23 regarding acts of treason, secession, sedition and subversion, and his speech was interpreted as a warning by Hong Kong's vibrant press, which includes 59 newspapers and 675 periodicals.

IV. Conclusions and Recommendations

By incorporating the ICCPR and ICESCR "as applied to Hong Kong," the Joint Declaration and Basic Law guarantee that the people of Hong Kong, following the transfer of sovereignty to the PRC on July 1, 1997, will be legally entitled to a level of human rights protection relatively consistent with international standards. However, reservations registered when the ICCPR was extended to Hong Kong, shortcomings in the Joint Declaration and Basic Law, and threats by the Chinese government to dismantle recent advances in Hong Kong with respect to human rights and electoral reform raise significant concerns regarding future prospects in the HKSAR. Such concerns arise in various areas, including reporting requirements pursuant to the ICCPR and ICESCR, the independence of the judiciary, the democratic nature of the executive and legislative branches, the role of NGOs and the freedom of expression and the press. The following recommendations are designed to address such concerns and promote a stable and protective human rights environment in the HKSAR following the transfer of sovereignty.

A. Future Reporting under the ICCPR and ICESCR

The Lawyers Committee urges the PRC to accede to the ICCPR and ICESCR before July 1, 1997, and to assume full obligations under these treaties including the reporting requirements. Failing this, the Chinese government should state its intention to cooperate fully in devising satisfactory alternative mechanisms that will allow the Human Rights Committee and the Economic Committee to continue receiving periodic reports on Hong Kong. Allowing the HKSAR itself to assume this reporting function would be consistent with the Basic Law's pledge that Hong Kong will retain a "high degree of autonomy" after 1997. The Lawyers Committee encourages the Human Rights Committee to request a final extraordinary report from the government of the United Kingdom on compliance with the ICCPR during the final period of British rule up to June 30, 1997.

B. Judiciary and Court of Final Appeal

The Lawyers Committee urges the Chinese government to declare that, in connection with the CFA agreement and Basic Law, it will narrowly interpret the "acts of state" doctrine in accordance with common law precepts to promote a stable and vibrant judiciary in the HKSAR. Additionally, in order to ensure the independence of the HKSAR judiciary, the current Hong Kong government, together with the PRC, should designate the Judicial Officers Recommendation Commission prior to the transfer of sovereignty and should establish mechanisms to ensure the continuing independence of this commission.

C. Executive and Legislative Branches

The PRC should require the Preparatory Committee, responsible for structuring the first HKSAR legislative and executive branches, to open its decision-making process to public scrutiny. The Lawyers Committee regrets the Preparatory Committee's decision to disband the current democratically elected Legislative Council, and believes that this decision is in breach of the Basic Law. The Lawyers Committee therefore urges the Preparatory Committee to review its decision to replace the present Legco with a Provisional Legislature. If it declines to do so, the Preparatory Committee should at a minimum take account of the most recent elections for the Legco so that a future Provisional Legislature will fairly reflect the preferences of the Hong Kong electorate.

D. Non-governmental Organizations

Non-governmental organizations have performed a vital role in promoting human rights in Hong Kong, particularly through their submissions to the Human Rights Committee. The PRC government should publicly announce its intention to permit the continued operation of human rights and environmental organizations in the HKSAR and its intention to permit local associations to maintain contacts with foreign NGOs. Furthermore, the Lawyers Committee urges the Human Rights Committee, when it comments on the report submitted by the British government pursuant to the ICCPR, to emphasize the importance of continued NGO activity following the transfer of sovereignty. Whichever entity takes responsibility for future reporting to the Human Rights Committee with respect to Hong Kong whether the Chinese government, the HKSAR or some other mechanism yet to be determined should be encouraged to consult actively with local NGOs in preparing its reports.

E. Freedom of Expression and the Press

The Lawyers Committee urges the PRC government prior to the transfer of sovereignty to formulate a clear and narrow definition of "theft of state secrets." Such a clarification would be an important step toward reassuring the people of the HKSAR that they will continue to enjoy the freedoms of expression and the press guaranteed by the ICCPR. Furthermore, the Lawyers Committee supports current efforts to enact legislation that would enshrine the right to freedom of information.

F. The Bill of Rights Ordinance (BORO)

The Chinese government should announce its intention to maintain the Bill of Rights Ordinance following the transfer of sovereignty on the grounds that the ordinance is consistent with the Basic Law. Furthermore, the PRC should not restore repealed or amended legislation that has been deemed inconsistent with the BORO. Finally, the Lawyers Committee urges that the ongoing project of reviewing, amending and introducing legislation in Hong Kong to ensure compliance with the BORO be completed as expeditiously as possible.

G. Other Human Rights Treaties

The Lawyers Committee supports the decision of the Hong Kong government to seek extension of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to Hong Kong and urges the extension of the Convention and Protocol relating to the Status of Refugees.

H. Human Rights Education

The Lawyers Committee supports ongoing efforts to educate the people of Hong Kong regarding the human rights protections to which they are entitled pursuant to international treaties and domestic legislation.