Good intentions create a legal mess

In arguing for comprehensive legislation outlawing racial discrimination in Hong Kong, a UN committee blundered into the sensitive territory of the division of responsibility between the Hong Kong government and Beijing under one country, two systems, writes NANCY KAYMAR STAFFORD.

On August 9, 2001, the UN Committee on the Elimination of Racial Discrimination (CERD) issued its concluding observations on the 8th and 9th periodic reports of the People’s Republic of China (PRC), including Hong Kong and Macau.

The PRC acceded to the International Convention for the Elimination of All Forms of Racial Discrimination (the Convention) in December 1981. The British government extended the Convention to Hong Kong in 1969. In 1991, the PRC notified the UN Secretary-General that the Convention would continue to apply to the HKSAR after July 1, 1997, when sovereignty over Hong Kong would be transferred to the PRC. The hearing in July-August of this year was the first time that the HKSAR and the PRC reported together to the CERD.

Under Article 9 of the Convention, each government is required to submit reports on the implementation of the Convention. While such reports are due every two years, most states report on a four-year cycle, combining two periodic reports. Once the government submits the report to the UN, a hearing is scheduled.

In the concluding observations issued at the end of the CERD hearing, the Committee joined its voice to that of other UN experts to insist that the government of the Hong Kong Special Administrative Region (HKSAR) should enact laws to prohibit racial discrimination. Concluding observation No. 17 reads:

[T]he Committee... reiterates its concern about the continuous absence in the Hong Kong Special Administrative Region of legal provisions protecting persons from racial discrimination to which they may be subjected by various persons, groups or organizations. The Committee does not accept the argument put forward for not initiating such legislation, i.e. that such legislation would not be supported by the society as whole. It is recommended to the Government of the State party and to the local authorities of the Hong Kong Special Administrative Region that the existing unsatisfactory situation be thoroughly reviewed and that appropriate legislation be adopted to provide appropriate legal remedies and prohibit discrimination based on race, color, descent or national or ethnic origin similarly to what has been done with regard to discrimination on the grounds of gender and disability.

The HKSAR has already enacted laws prohibiting racial discrimination in the public sector. The Hong Kong Bill of Rights Ordinance prohibits government and public authorities from discrimination on the grounds of race. Although the HKSAR has passed laws to prohibit discrimination on the basis of gender, family status and disability in the private sector, it has not extended discrimination legislation to cover race.

Unfortunately, the impact of the CERD’s unequivocal call for legislation in the HKSAR was diminished as a result of the body’s evident confusion over the relationship between Hong Kong and the central government in Beijing.

The territories of both Hong Kong and Macau were ceded to China by their former colonial rulers under the rubric of “one country, two systems.” This is the underlying principle of the HKSAR’s constitutional and political position as a special administrative region of the PRC. The principle was laid out in the Sino-British Joint Declaration, and states that the HKSAR will retain a high degree of autonomy from the PRC. It also states that the HKSAR’s social and economic systems and the rights and freedoms of its people will remain unchanged for 50 years.

One of the key guarantees for Hong Kong’s autonomy is that it retains its rule of law system based on the British common law. The Basic Law, Hong Kong’s mini-constitution, clearly gives the HKSAR autonomy to enact legislation in most areas governing life in the territory, including racial discrimination. Under Article 73 of the Basic Law, Hong Kong’s Legislative Council is given the authority to enact laws for the SAR. While the PRC has limited powers of interpretation under Article 158, it has no power to legislate.

Yet during the CERD hearings, Mahmoud Aboul-Nasr, a Committee expert from Egypt, raised a procedural question regarding the status of Hong Kong and Macau, as they are not themselves states party to the Convention. Aboul-Nasr was concerned that having separate reports for the PRC, the HKSAR and Macau—as has become the common practice for submissions to UN treaty bodies since Hong Kong became part of the PRC in 1997—would set a bad precedent for the CERD. He stated that he did not want to see all 50 of the states comprising the United States wanting to report separately.

In the United States, the federal government has responsibility for all foreign affairs. But in Hong Kong, Article 151 of the Basic Law permits the HKSAR to enter into international agreements in “appropriate fields.” Therefore, it is not comparable to the situation of the United States where no individual state has the power to engage in international affairs. While the HKSAR does not have the ability to obligate itself in all areas of foreign affairs, there are some instances where it clearly has the right.

For example, Hong Kong is obliged to respect the terms and reporting provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Despite the fact that the PRC had not ratified either treaty at the time and was thus not required to report under them, the HKSAR reported to the United Nations on its compliance with these treaties independently in April 2001 and November 1999. (The PRC ratified the ICESCR in June 2001.) This clearly shows that the two treaty bodies that monitor the conventions, respectively the Committee on Economic, Social and Cultural Rights (CESCR) and the Human Rights Committee, recognize Hong Kong’s individual obligation under international agreements. The CESCR’s concluding observations following the April hearing included the following statement:

It is the Committee’s view that the HKSAR’s failure to prohibit race discrimination in the private sector constitutes a breach of its obligations under Article 2 of the Covenant. The Committee calls upon the HKSAR to extend its prohibition of race discrimination into the private sector.

The CERD, however, chose to ignore the practice established in prior hearings of the Human Rights Committee and CESCR regarding the two systems aspect of the “one country, two systems” principle. It its concluding observations, the CERD put the onus for combating racial discrimination in Hong Kong on the PRC:

The Committee wishes to emphasize that irrespective of the relationship between the central authorities and the special administrative regions, and the principle “one country, two systems,” the People’s Republic of China has, as the State party to the Convention, the responsibility to ensure its implementation in its entire territory.

This statement from the CERD creates a serious problem for the PRC. It is required by the United Nations to ensure implementation of the Convention in its entire territory, including Hong Kong. However, it does not have the authority to enact legislation to prohibit discrimination in Hong Kong. It can only attempt to force the Hong Kong government to do so. However, the implications of giving China responsibility for implementing the Convention go further than legislating. For example, the Convention requires, in Article 7, the adoption of measures to combat prejudices leading to racial discrimination, specifically in the field of teaching, education, culture and information. Clearly, the PRC has no authority to control such internal policies of the HKSAR. How does the CERD expect the PRC to implement such measures? Additionally, what types of remedies will be provided to victims of racial discrimination?

Fortunately, the CERD also recommended that the local authorities of the HKSAR government adopt legislation to prohibit racial discrimination. Unfortunately, the CERD made it clear that in regards to this Convention, the HKSAR is not considered a state party and therefore has no direct obligation. Therefore the responsibility rests solely on the PRC to ensure compliance with the Convention. Could this result in opening the door to PRC intervention in Hong Kong’s affairs?

The one country, two systems principle is continuously evolving. Every decision made regarding the relations between Beijing and Hong Kong affects the balance of the principle. The CERD’s view that the PRC has responsibility for implementing the Convention in the HKSAR places too much weight on one country and not enough on two systems. It is an erroneous judgment and needs to be reconsidered.

Unlike hearings reviewing reports from the PRC by some of the other committees that monitor UN human rights treaties, the CERD allotted only two half-day sessions, a total of six hours, to review of the three reports. The first three hours were taken up by representatives of the governments of the PRC, Macau and the HKSAR presenting their reports. In the second three-hour session, the CERD members asked questions and obtained answers from the government representatives. The time afforded to the review of Macau was relatively short. The majority of the remaining time was split between the HKSAR and the PRC. With open and closing statements from the chairperson of the Committee and the government representatives, there was little time for actual discussion of either the PRC or the HKSAR reports.

In addition to government reports and information provided by government representatives at these hearings, the CERD members receive materials from other treaty bodies and UN agencies, as well as submissions from various NGOs (non-governmental organizations).

NGOs play a significant role in the process of scrutinizing states’ implementation of UN human rights treaties. They generally critique the reports submitted by governments, supplying additional information and noting areas of concern. Many NGOs made submissions to the CERD members, either prior to or during the hearing, in the hope that they would use the information to critique the government report and formulate questions on areas where government claims appear not to match the reality of the situation.

NGO submissions at the July hearings dealt either with the Mainland or Hong Kong exclusively. The CERD members complimented the NGOs presenting reports relating to the HKSAR on their in-depth analysis of the issues. The Hong Kong NGO submissions all addressed the need for legislation to prohibit racial discrimination in the region and provide redress for the victims of such discrimination. Other issues outlined in the various reports included concerns about discrimination against foreign domestic helpers and new arrivals from the Mainland, as well as in immigration, education, housing, employment and medical services.

However, the limitations imposed by time constraints can sometimes prevent even the most pressing issues NGOs raise from being identified as subjects of concern by the CERD. The common practice is that concluding observations of UN committees will only comment on issues that were addressed during the hearings. Therefore, if there is not enough time for the Committee members to ask questions about certain subjects, whether related to the information in the government or the NGO reports, they will not make recommendations or observations about that issue.

This could be very convenient for the PRC, as the delegation attending the hearing may be able to manipulate the time spent on each region under its sovereignty in such a way as to avoid discussion of some serious issues of discrimination within the PRC. It also may result in racial discrimination problems in the HKSAR being ignored if the Committee members focus primarily on issues affecting the population in Mainland China.

Based on 1999 statistics, the PRC is made up of approximately 1.3 billion people, including seven million in Hong Kong and 450,000 in Macau. Italy and the Ukraine, both of which were also reviewed by the CERD at its recent session, have populations numbering approximately 57 million and 51 million people respectively. Yet these two countries were allotted the same amount of time as the PRC: two three-hour sessions. This seems horribly unfair. The issues in the PRC are numerous and need a more appropriate amount of time for a proper review by the CERD. Limiting the PRC hearing to six hours does not give sufficient consideration to the over one billion people in the country. The CERD cannot effectively analyze the issues of the PRC, the HKSAR and Macau in such a short hearing.

Because the legal systems and policy structures are significantly different in the PRC and the HKSAR, the two regions should continue to report separately on their responsibility for implementation of the Convention. This could be done in back-to-back sessions so that the CERD can glean a thorough picture of the situation in the entire territory and continue to respect the “one country, two systems” principle.

However, if the CERD continues to insist that the PRC, the HKSAR and Macau are to report together, they must increase the time allotted for the hearing. Moreover, the CERD should clearly outline how it expects to receive future reports from the State Party. Emphasis should be placed on having a report with separate sections for each region.

According to a Hong Kong government source, the HKSAR and Macau intend to submit their individual reports as annexes to the PRC’s report for the next periodic reporting to the CERD. How in-depth these will be, as compared to prior reports, remains to be seen. Additionally, it is not clear if the other UN committees will follow the trend set by the CERD or if the idea of producing separate annexes will continue beyond the next reporting period.

Nancy Kaymar Stafford attended the CERD hearing on behalf of the Hong Kong Human Rights Monitor, where she has been working for the past year as a researcher. She is a member of the bar of the State of New York.