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Embracing Universal Standards?

The Role of International Human Rights Treaties in Hong Kong’s Constitutional Jurisprudence
  • Carole J. Petersen
Chapter

Abstract

In this chapter, I analyze the extent to which international human rights treaties, and interpretative materials that inform and update our understanding of those treaties, are considered and relied on by the Hong Kong judiciary. I adopt a fairly broad definition of “interpretative materials” to include not only international and foreign judgments but also commentary by international treaty monitoring bodies, periodic reports submitted by the Hong Kong government regarding its implementation of the treaties, and other nonjudicial commentary.

Keywords

Judicial Review Periodic Report Special Administrative Region Legislative Council United Nations Human 
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Notes

  1. 1.
    See Hong Kong Bill of Rights Ordinance (Cap 383). For a discussion of the enactment of the Bill of Rights in 1991 and the simultaneous amendment to the Letters Patent, see Yash Ghai, Hong Kong’s New Constitutional Order, 2nd ed. (Hong Kong: Hong Kong University Press, 1999), 419–22;Google Scholar
  2. Andrew Byrnes, and Johannes Chan, eds., Public Law and Human Rights: A Hong Kong Sourcebook (Hong Kong: Butterworths, 1993), 215–29.Google Scholar
  3. 2.
    See Simon N. M. Young, “Restricting Basic Law Rights in Hong Kong,” Hong Kong Law Journal 34 (2004): 130.Google Scholar
  4. 8.
    For further discussion of the Pannick clauses and the debate on the Article 23 legislation, which was ultimately withdrawn by the government in response to public protests, see Carole J. Petersen, “Hong Kong’s Spring of Discontent: The Rise and Fall of the National Security Bill in 2003,” in National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under Scrutiny, ed. Hualing Fu, Carole J. Petersen, and Simon N. M. Young, chap. 1 (Hong Kong: Hong Kong University Press, 2005).Google Scholar
  5. 28.
    See Hong Kong Government, Report on the Hong Kong Special Administrative Region under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1999), para. 2.Google Scholar
  6. 41.
    In 1994, the government informed the Legislative Council that “we will need to introduce some form of legislation prohibiting discrimination, which would include equal pay legislation, before CEDAW is formally extended to Hong Kong.” See Home Affairs Branch, “Legislative Council Brief: Equal Opportunities for Women and Men,” June 1994, para. 10 (reprinted as Document No. 298, 336, in Hong Kong Equal Opportunity Law—Legislative History Archive 1993–1997 [Centre for Comparative and Public Law, University of Hong Kong 1999]). Similarly, a government press release of June 3, 1994, stated that the “institution of sex discrimination legislation is a means to implement the provisions of CEDAW,” ibid., Document No. 26, 333–35.Google Scholar
  7. 43.
    [2001] 1 HKLRD 690 (CFI). For a more detailed discussion of this case and the allocation system, see Carole J. Petersen, “The Right to Equality in the Public Sector: An Assessment of Post-Colonial Hong Kong,” Hong Kong Law Journal32 (2002): 103–34.Google Scholar
  8. 44.
    See Equal Opportunities Commission, Formal Investigation Report: Secondary School Places Allocation (SSPA) System, at Executive Summary, 1999, iv and chap. 4; 24, para. 29.Google Scholar
  9. 46.
    For further discussion, see Carole J. Petersen, “Implementing Equal Pay for Work of Equal Value: A Feminist Perspective,” in Proceedings: Equal Pay for Work of Equal Value (Hong Kong: EOC, 2000).Google Scholar
  10. 49.
    See Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: the Theoretical and Procedural Aspects (Antwerpen: Intersentia, 1999);Google Scholar
  11. Beth Lyon, “A Post-Colonial ‘Agenda’ for the United Nations Committee on Economic, Social and Cultural Rights,” American University Journal of Gender, Social Policy and the Law 10 (2002): 535.Google Scholar
  12. 50.
    UN Committee on Economic, Social and Cultural Rights, General Comment 3, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument, accessed February 20, 2007).Google Scholar
  13. 66.
    Legislation that would have expanded collective bargaining powers and protected against summary dismissal (enacted shortly before the handover) was repealed by the Provisional Legislative Council. See Wilson Chow and Anne Carver, “Employment and Trade Union Law: Ideology and the Politics of Hong Kong,” in The New Legal Order in Hong Kong, ed. Ray Wacks (Hong Kong: Hong Kong University Press, 1999). Efforts to introduce similar bills since the handover have been frustrated by the limitations on private members bills in Article 74 of the Basic Law.Google Scholar
  14. 67.
    See Peggy Lee, and Carole Petersen, Forced Labour and Dept Bondage in Hong Kong: A Study of Indonesian and Filipina Migrant Domestic Workers, Centre for Comparative and Public Law Occasional Paper No. 16, June 2006, available at http://www.hku.hk/ccpl/.Google Scholar

Copyright information

© Hualing Fu, Lison Harris, and Simon N. M. Young, eds. 2007

Authors and Affiliations

  • Carole J. Petersen

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