Human Rights in Hong Kong - Human Rights Under International Law

Human Rights Under International Law

The International Covenant on Economic, Social and Cultural Rights(ICESCR) and International Covenant on Civil and Political Rights (ICCPR) are in effect in Hong Kong by virtue of Article 39 of the Basic Law.

The ICESCR requires the government to take steps by all appropriate means and to the maximum of its available resources to achieve the rights in the covenants. The Court has repeatedly expressed the judicial opinion that such rights are positive in nature and are not enforceable unless domestic legislation has been enacted providing for the rights stipulated therein. Unlike the ICCPR, the ICESCR was not incorporated into domestic Hong Kong law and is only binding under international law. Hartmann J's description of the ICESCR as "aspirational" and "promotional" sums up the approach of the Hong Kong courts.

A number of ICESCR rights are incorporated in the Basic Law, such as the right to form trade unions and to strike (Article 27), right to social welfare (Article 36) and the right to benefit from the production of moral and material interest resulting from any scientific, literary or artistic production of which he is the author (Article 140).

Although the right to housing (Article 11 of the ICESCR) is not incorporated in any domestic law and is hence not an "entitlement", the Hong Kong Government has been providing public housing in the nature of "grace". In 1973, the government announced a 10-year plan to provide self-contained public housing to 1.8 million people. In 1995, public housing accommodated 2 million people, accounting for 45% of all housing. Public housing rental units are provided at subsidized rates (typically 20% of that in the private market), although their allocation is mean tested. The government introduced the Home Ownership Scheme in 1978 and the Sandwich Class Housing Scheme in the 1990s to allow families to own their own homes.

Although the right to health is contained in Article 12 of the ICESCR, there is again no entitlement as such in domestic Hong Kong law. However, Article 138 of the Basic Law requires the HKSAR to improve medical and health services by formulating policies to develop Western and Chinese medicine. Healthcare is provided by the government in the nature of "grace": the Accident & Emergency service and the in-patient (general acute beds) service provided by the Hospital Authority charges HKD100 per visit and HKD100 per day respectively. 95% of Hong Kong prople depend on the in-patient service provided by the public sector and 30% on the out-patient service provided by the public sector.