Annex E
Application of international human rights treaties to the HKSAR
Application of international human rights treaties to the HKSAR
By a notification on 20 June 1997, the Government of the People’s Republic of China informed the United Nations Secretary-General of the status of Hong Kong in relation to treaties deposited with the Secretary-General. The notification specifically sets out, among other things, that the provisions of the Covenant as applied to Hong Kong shall remain in force beginning from 1 July 1997.
On 20 April 2001, the Government of the People’s Republic of China notified the Secretary-General of the following statement on the application of the Covenant to the HKSAR:
“1. Article 6 of the Covenant does not preclude the formulation of regulations by the HKSAR for employment restrictions, based on place of birth or residence qualifications, for the purpose of safeguarding the employment opportunities of local workers in the HKSAR.
2.“National federations or confederations” in Article 8.1(b) of the Covenant shall be interpreted, in this case, as “federations or confederations in the HKSAR” and this Article does not imply the right of trade union federations or confederations to form or join political organizations or bodies established outside the HKSAR.”
The abovementioned notification of 20 June 1997 from the Government of the People’s Republic of China also informed the United Nations Secretary-General that the provisions of the Covenant as applied to Hong Kong shall remain in force beginning from 1 July 1997.
In 1976, the Government of the United Kingdom ratified the Covenant with certain reservations and declarations, and extended the Covenant to Hong Kong. The reservations and declarations which continue to apply to HKSAR are as follows.
Declaration made on signing the Covenant
“First, the Government of the United Kingdom declare their understanding that, by virtue of Article 103 of the Charter of the United Nations, in the event of any conflict between their obligations under Article 1 of the Covenant and their obligations under the Charter (in particular, under Articles 1, 2 and 73 thereof) their obligations under the Charter shall prevail.”
Declarations and reservations made on depositing the instrument of ratification of the Covenant
“Firstly the Government of the United Kingdom maintain their declaration in respect of Article 1 made at the time of signature of the Covenant.”
“The Government of the United Kingdom reserve the right to apply to members of and persons serving with the armed forces of the Crown and to persons lawfully detained in penal establishments of whatever character such laws and procedures as they may from time to time deem to be necessary for the preservation of service and custodial discipline and their acceptance of the provisions of the Covenant is subject to such restrictions as may for these purposes from time to time be authorised by law.”
“Where at any time there is a lack of suitable prison facilities or where the mixing of adults and juveniles is deemed to be mutually beneficial, the Government of the United Kingdom reserve the right not to apply Article 10.2(b) and 10.3 so far as those provisions require juveniles who are detained to be accommodated separately from adults, ...”
“The Government of the United Kingdom reserve the right to interpret the provisions of Article 12.1 relating to the territory of a State as applying separately to each of the territories comprising the United Kingdom and its dependencies.”
“The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of Article 12.4 and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories.”
“The Government of the United Kingdom reserve the right not to apply Article 13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority.”
“The Government of the United Kingdom interpret Article 20 consistently with the rights conferred by Articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislation. The United Kingdom also reserve a similar right in regard to each of its dependent territories.”
“The Government of the United Kingdom reserve the right to enact such nationality legislation as they may deem necessary from time to time to reserve the acquisition and possession of citizenship under such legislation to those having sufficient connection with the United Kingdom or any of its dependent territories and accordingly their acceptance of Article 24.3 and of the other provisions of the Covenant is subject to the provisions of any such legislation.”
“The Government of the United Kingdom reserve the right not to apply sub-paragraph (b) of Article 25 in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong ....”
On 10 June 1997, the Government of the People’s Republic of China issued a letter to the United Nations Secretary-General giving notification that the Convention will apply to the HKSAR with effect from 1 July 1997. The Government of the People’s Republic of China also made the following declarations:
“The reservation made by the Government of the People’s Republic of China to Article 22 of the Convention will also apply to the Hong Kong Special Administrative Region.
The Government of the People’s Republic of China on behalf of the Hong Kong Special Administrative Region interprets the requirement in Article 6 concerning “reparation and satisfaction” as being fulfilled if one or other of these forms of redress is made available and interprets “satisfaction” as including any form of redress effective to bring the discriminatory conduct to an end.”
The Convention was extended to Hong Kong, with the consent of the People’s Republic of China and the United Kingdom, on 14 October 1996. The Government of the People’s Republic of China notified the United Nations Secretary-General that the Convention would continue to apply to the HKSAR with effect from 1 July 1997, with the following reservations and declarations:
“1. The reservation made by the Government of the People’s Republic of China to paragraph 1 of Article 29 of the Convention will also apply to the Hong Kong Special Administrative Region.
2. The Government of the People’s Republic of China understands, on behalf of the Hong Kong Special Administrative Region, the main purpose of the Convention, in the light of the definition contained in Article1, to be the reduction, in accordance with its terms, of discrimination against women, and does not therefore regard the Convention as imposing any requirement upon the Hong Kong Special Administrative Region to repeal or modify any of its existing laws, regulations, customs or practices which provide for women to be treated more favourably than men, whether temporarily or in the longer term. Undertakings by the Government of the People’s Republic of China on behalf of the Hong Kong Special Administrative Region under Article 4, paragraph 1, and other provisions of the Convention are to be construed accordingly.
3. The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to continue to apply relevant immigration legislation governing the entry into, stay in and departure from the Hong Kong Special Administrative Region as may be deemed necessary from time to time. Accordingly, acceptance of Article 15, paragraph 4, and of the other provisions of the Convention is subject to the provisions of any such legislation as regards persons not at the time having the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region.
4. The Government of the People’s Republic of China understands, in the light of the definition contained in Article 1, that none of its obligations under the Convention shall be treated as extending to the affairs of religious denominations or orders in the Hong Kong Special Administrative Region.
5. Laws applicable in the New Territories of the Hong Kong Special Administrative Region which enable male indigenous villagers to exercise certain rights in respect of property and which provide for rent concessions in respect of land or property held by indigenous persons or their lawful successors through the male line will continue to be applied.
6. The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply all its legislation and the rules of pension schemes affecting retirement pensions, survivors’ benefits in relation to death or retirement (including retirement on ground of redundancy), whether or not derived from a social security scheme.
This reservation will apply equally to any future legislation which may modify or replace such aforesaid legislation, or the rules of pension schemes, on the understanding that the terms of such legislation will be compatible with the Government of the People’s Republic of China’s obligations under the Convention in respect of the Hong Kong Special Administrative Region.
The Government of the People’s Republic of China reserves the right for the Hong Kong Special Administrative Region to apply any non-discriminatory requirement for a qualifying period of employment for the application of the provisions contained in Article 11, paragraph 2 of the Convention.
7. The Government of the People’s Republic of China understands, on behalf of the Hong Kong Special Administrative Region, the intention of Article 15, paragraph 3, of the Convention to be that only those terms or elements of the contract or other private instrument which are discriminatory in the sense described are to be deemed null and void, but not necessarily the contract or instrument as a whole.”
On 10 June 1997, the Government of the People’s Republic of China notified the United Nations Secretary-General that the Convention will apply to the HKSAR with effect from 1 July 1997. The Government of the People’s Republic of China also made the following declaration:
- “the reservations made by the Government of the People’s Republic of China to article 20 and paragraph 1 of article 30 of the Convention will also apply to the Hong Kong Special Administrative Region.”
The aforementioned reservations are:
“1. The Chinese Government does not recognize the competence of the Committee against Torture as provided for in article 20 of the Convention.
2. The Chinese Government does not consider itself bound by article 30, paragraph 1, of the Convention.”
On 10 June 1997, the Government of the People’s Republic of China issued a letter to the United Nations Secretary-General and a number of diplomatic notes stating that the reservations and declarations entered by the Government of the People’s Republic of China on its ratification of the Convention in 1992 were also applicable to the HKSAR with effect from 1 July 1997. These reservations and declarations were:
“1. The Government of the People’s Republic of China, on behalf of the Hong Kong Special Administrative Region, interprets the Convention as applicable only following a live birth.
2. The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time.
3. The Government of the People’s Republic of China interprets, on behalf of the Hong Kong Special Administrative Region, the references in the Convention to “parents” to mean only those persons who, under the laws of the Hong Kong Special Administrative Region, are treated as parents. This includes cases where the laws regard a child as having only one parent, for example where a child has been adopted by one person only and in certain cases where a child is conceived other than as a result of sexual intercourse by the woman who gives birth to it and she is treated as the only parent.
4. The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right not to apply article32(2)(b) of the Convention in so far as it might require regulation of the hours of employment of young persons who have attained the age of fifteen years in respect of work in non-industrial establishments.
5. The Government of the People’s Republic of China, on behalf of the Hong Kong Special Administrative Region, seeks to apply the Convention to the fullest extent to children seeking asylum in the Hong Kong Special Administrative Region except in so far as conditions and resources make full implementation impracticable. In particular, in relation to article 22 of the Convention, the Government of the People’s Republic of China reserves the right to continue to apply legislation in the Hong Kong Special Administrative Region governing the detention of children seeking refugee status, the determination of their status and their entry into, stay in and departure from the Hong Kong Special Administrative Region.
6. Where at any time there is a lack of suitable detention facilities, or where the mixing of adults and children is deemed to be mutually beneficial, the Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right not to apply Article 37(c) of the Convention in so far as those provisions require children who are detained to be accommodated separately from adults.”
On 10 April 2003, the Government of the People’s Republic of China informed the Secretary-General that it had decided to withdraw its declaration relating to article 22 of the Convention.
On 1 August 2008, the Government of the People’s Republic of China deposited its Instrument of Ratification of the Convention with the United Nations Secretary-General and made the following declarations in respect of the HKSAR:
“In accordance with the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China …, the Government of the People’s Republic of China decides that the Convention shall apply to the Hong Kong Special Administrative Region … of the People’s Republic of China.
The application of the provisions regarding Liberty of movement and nationality of the Convention on the Rights of Persons with Disabilities to the Hong Kong Special Administrative Region of the People’s Republic of China, shall not change the validity of relevant laws on immigration control and nationality application of the Hong Kong Special Administrative Region of the People’s Republic of China.”
The Convention entered into force for the People’s Republic of China, including the HKSAR, on 31 August 2008.
The following United Nations human rights and related treaties apply to the HKSAR:
- Convention on the Prevention and Punishment of the Crime of Genocide, 1948
- Slavery Convention, 1926
- Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956
- Convention relating to the Status of Stateless Persons, 1954
- United Nations Convention against Transnational Organized Crime, 2000
- United Nations Convention against Corruption, 2003
The following Geneva Conventions apply to the HKSAR:
- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949
- Geneva Convention relative to the Treatment of Prisoners of War, 1949
- Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949
The following Conventions of the International Labour Organization apply to the HKSAR:
- Weekly Rest (Industry) Convention, 1921 (No. 14)
- Forced Labour Convention, 1930 (No. 29)
- Labour Inspection Convention, 1947 (No. 81)
- Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
- Migration for Employment Convention (Revised), 1949 (No. 97)
- Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
- Abolition of Forced Labour Convention, 1957 (No. 105)
- Employment Policy Convention, 1964 (No. 122)
- Minimum Age Convention, 1973 (No. 138)
- Labour Relations (Public Service) Convention, 1978 (No. 151)
- Worst Forms of Child Labour Convention, 1999 (No. 182)
The following Conventions of the Hague Conference on Private International Law apply to the HKSAR:
- Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, 1993
- Convention on the Recognition of Divorces and Legal Separations, 1970
- Convention on the Civil Aspects of International Child Abduction, 1980