HUMAN RIGHTS IN PosT-1997 HONG KONG: STILL A l(E y ROLE FOR INTERNATIONAL LA W? Alison Alison W. Conner' 1. 1. INTRODUCTION On July 1，1997 ，sovereignty over Hong Kong reverted to the People's Republic Republic of China (the PR C) and the former British colony became a Chinese Chinese special administrative region (SAR or the HKSAR). During the run-up run-up to 1997 ，continued protection of rights under Chinese rule was a m 司or cause for concern in the international community as well as in Hong Kong. Kong. Although it would be a mistake to romanticize the situation under British British rule ，1 real differences existed in law and practice between Hong Kong and and China ， and consequen t1 y Hong Kong people fe 1t great anxiety about this issue ，especially after the events of June 4，1989. 2 Now ，less than a year since the July 1 handover ，worries over Hong Kong's Kong's economy have seemingly eclipsed fears of PRC infringements of Hong Kong people's rights. Even the foreign press has concluded 血at ， in the the wake of the Asian economic downturn ， the real challenges for Hong Kong are economic ， not politica l. 3 China ，moreover ， has apparen t1 y adhered to to its stated policy of non-interference in Hong Kong affairs ， and any threats to to the protection of rights have come from the HKSAR government itsel f. After After a summary of the legal framework protecting rights in Hong Kong ，出 is essay essay will analyze the actions of the PRC and SAR governments since July 1. 1. Have their actions supported or undermined 伽 tlegal fra IIi ework? How • Associate professor of law ，U 凶versity of Hawai'i School of La w. Fonn 巴rly taught at 出E U 凶versity of Hong Kong ，Faculty of La w (1 98 6- 199 の. J.O. ，Harvard; Ph.O. ， Comell. 1. 1. Although officially referred to as a “territory ，" Hong Kong remained a colony ， and many critics Britain's 。f Britain's policies pointed to restrictive legislation during colonial rule. See Frank Ching ， Misre ，凶 tg Hong Kong ，76 FOREIGN AFF. 53 ，58 -6 2 (May/June 1997); See ，e.g. ，Christine Loh ， Hun 聞 Rights -l n 0 Tune 陥 rp? ，in 刊 E UTHER HONG KONG REPORT 1996 ， at 89 ，99 (Nyaw Mee- kau kau & Li Si-ming eds. ，199 の. 2. 2. Wh en the Chinese govemment's bru 飽1suppression of 血ep ro-d emωracy demonstrations in Beijing profoundly profoundly shocked Hong Kong people. See Johannes Chan ， Huntan Rights: ・From One Ero to Ano ther ， in THE O TIl ER HONG KONG REPORT 1997 ， at 137 ， 139 (J oseph Y.S. Cheng ed. ， 1997). 3. 3. See Bruce Gilley ， China Ed 加e，FAR E. ECON. REV. ， Feb. 5，1998 ， at 23; Keith Richburg ， 白 njidence Runs Lo w in Embattled Hong Kong ，INT'L HERA 印TRiB.， Jan. 23 ，ゆ 98 ，at 11; Ed ward A. A. Gargan ， Economy SI 加 ωHong Kong Holds On to Dol 伯， rIink， INT'L HERALD TRt B. ， February 3，1998 ，at 15. 307 308 Southern Ill inois University La w Journal [V ol. 22 泊lpO 託ant is the role of international rights protection in Hong Kong-has its importance importance diminished or decreased since the handover? 11. 11. LEGAL FRAMEWORK FOR THE PROTECTION OF RIGHTS Although Although Hong Kong's framework for the protection of rights includes both both international and domestic legislation ， the distinction between them is not not always clear-cut ，a consequence of Hong Kong's unusual constitutional structure. 4 First ， both the International Covenant on Civil and Political Rights Rights (the ICCPR)S and the International Covenant on Ec onomic ，Social and Cultural Cultural Rights (the ICESCR)6 have applied to Hong Kong since. Great Britain Britain ratified them in 1976 and ， with certain reservations ， extended their 7 application application to its colonies. Second ， the 1984 Sino ・British Joint Declaration not not only promised 出at 由e “provisions of the ICCPR and the ICESCR as applied applied to Hong Kong shall remain in force" after 1997 ， but also provided for for the continued protection of rights and freedoms already existing in Hong Kong.8 Kong.8 Hong Kong's most important domestic sources of rights are the Basic La w and the Bill ofRights. Th e Basic La w ，9 Hong Kong's mini-constitution ， went into effect on July 1， 1997. It contains a broad range of rights (including (including economic and social) and introduces into domestic legislation the rights rights and freedoms granted protection by the Joint Declaration. The Basic Law ，moreover ，reiterates the Joint Declaration's promise that the provisions “provisions of the ICCPR and the ICESCR as applied to Hong Kong shall 4. 4. Y ASH GHAl ，HONG KONG'S NEW CON STlTUT IONAL ORDER: THE REs UMPTION OF CHINESE SOVE 阻 GNTY AND 叩 E BASIC LAW 373 (1 997). See chapter 9 for a detailed analysis of 恥 se domestic domestic and international sources of rights. 5. 5. See 999U.N.T.S. 17 1. 6. 6. See 993 U.N.T.S. 3. 7. 7. See GHAl ， supra note 4 ，at 376. Since 白紙 time ，Britain ratified other international covenants on behalf behalf of Hong Kong ，including the Convention Torture Against and Other Cruel ， Inhuman and Degrading Degrading Treatment ， and the Convention on the Elimination of A I1 Forms of Discrimination Against Against Women. Id. at 374. 8. 8. See Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland Ireland and the Government of the People's Republic of China on the Question of Hong Kong ， P問 amble ~ 3(5) ， Annex 1 ，pt. XIII ， Dec. 19 ，1984 ，U.K.-P.R.C. ，[hereinafter Joint Declaration] ， reprinted reprinted in PUB Ll C LAW AND HUMAN RIGHTS: A HONG KONG SOURCEBOOK 45 (Andrew Byrnes & Johannes Chan eds. ， 1993) [hereinafter PUB Ll C LAW AND HUMAN RIGHTS]. 9. 9. BASIC LAW OF 百tE HONG KONG SPECIAL ADMINlSTRATIVE RE Gl ON OF ηtE PEOPLE'S REPUB Ll C OF CH 削 A (1明治 1) [h ereina 白er BASIC LAW] ，reprinted in PUB Ll C LAW AND HUMAN RIGHTS ， supra note 8 ，at 84. 1998] 1998] Human Rights 309 remain remain in force and shall be implemented through the laws of the Hong Kong Special Special Administrative Region." 10 The 1991 Bill of Rights Ordinance ll was adopted by the Hong Kong government in the wake of June 4， 1989 to provide reassurance to Hong Kong people that their rights would continue to receive protection a白er the 1997 transfer of sovereignty to China. The Bill of Rights essentially introduced introduced the provisions of the ICCPR as they applied to Hong Kong domestic domestic law ， so its scope was therefore limited to civil and political rights. The drafters chose that model to ensure 出e law's survival a抗er the 1997 transition transition and to give domestic expression to those rights. 12 Together ， these statutes should provide Hong Kong with a reasonable framework for the protection of human rights; 加deed ，on paper ，Hong Kong people people should have more extensive protection than ever before. 13 But the final final version of the Basic Law contains a number of controversial provisions ，14 and its vague dra 自ing style as well as the uncertain interpretation interpretation of its very general provisions may create difficulties. IS The Chinese Chinese government ，moreover ，strongly opposed the Bill of Rights from its enactment ，arguing 出at its “superior" status contravened the Basic Law. 16 Destite Destite objections from Hong Kong legal experts 出at the Bill of Rights 10. 10. ld. ，art. 39. 1. 11. Hong Kong B ilI of Ri ghts Ordinance ，LAWS OF HONG KONG ， ch. 383 (1991) ，reprinted in PUBUC LAW AND HUMAN Rt GHTS ，supra note 8 ，at 218. 12. 12. At 血e same time 血e Hong Kong Le tters Patent were amended to entrench the ICCPR until 1uly 1， 1997. 1997. P凶 ip Dykes ，1h e Hong Kong BiII of Rights 1991: lts Origin ，Content and 11 叩 'act ，in THE HONG KONG BILL OF Rt GHTS: A COMPARA Tl VE ANALYSIS 39 (10hannes Chan & Yash Ghai eds. ， 1993). 1993). 13. 13. See Michael C. Davis ，Human Rights and the Founding ofthe Hong Kong Special Administrative Region: Region: A Frameworkfor Analysis ， 34 COL 酬 .1. TRANSNAT'L L. 301 ， 315 (1996); Ed itorial ，4 BILL BILL OF RTS. BULL. 1 (Aug. 1997). 14. 14. See ，e.g. ， BASIC LAW ， supra note 9 ，art. 23. Article 23 requires the HKSAR to enact laws “ω prohibit prohibit any act of 回路on ，se 印 ssion ，sedition ，subversion against 世leCen 回 IPeople's Government or 血eft of 5阻也 secrets ，ωprohibit foreign politiω1 organizations or 以刈ies from conduc 也事 politic a1 activities activities in the Region ， and to prohibit political organizations or bodies of 曲e Region from es 帥Ii shing ties with foreign 凶 itical organizations or bodies." ld. Th e Basic Law and the rights it it creates have been exhaustively analyzed and commented upon in Hong Kong since the drafting pr<ぉ ess beg 叩 du riJ:理由 e rnid -e ighties. For bibliographies of some of 血ose works ， see GHAI ，supra no 隠 4， at 473 and PUBUC LAW AND HUMAN Rt GHTS ，supra note 8 ，at 81-82. 15. 15. See BASIC LAw ，supra note 9 ，art. 158. Under Article 158 ， the Basic La w is to be inte 叩reted by the the Standing Committee of the National People's Congress of the PRC ， not by 出e courts of 血E SAR.