Domestic application of International Human Rights Treaties and refugees' right to work in Hong Kong

Abstract

When Britain and China entered into the Sino-British Joint Declaration in 1984 on the return of Hong Kong to China, assurances were made to safeguard the continuing operation of international human rights treaties in Hong Kong. Article 39 of the Basic Law, which originated from the Joint Declaration, provides that the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as applied to Hong Kong, remain in force and shall be implemented through the laws of Hong Kong. The ICCPR was incorporated into local legislation through the Hong Kong Bill of Rights Ordinance (HKBORO), but the ICESCR was not so incorporated, thus leaving in the air the question as to the extent of its applicability to domestic law. This question of the status of the ICESCR in Hong Kong was discussed in the recent Court of Final Appeal decision of GA v Director of Immigration [2014] 3 HKC 11, which concerned refugee’s right to work. The right to work is a fundamental right for everyone as per Article 23 of the Universal Declaration of Human Rights. Refugees, a vulnerable displaced population that faces fear of persecution if returned to its country of origin, are particularly protected under international law. Their various rights, including the right to engage in wage-earning employment and self-employment is guaranteed under the Refugee Convention and other international human rights treaties. These human rights treaties protect the rights of everyone without discrimination, though states often dispute about the extent of the applicability of socio-economic rights to non-nationals and refugees. As Hong Kong is not a party to the Refugee Convention, the court had to examine whether refugee’s right to work could be derived from other human rights treaties that apply to Hong Kong, including the ICCPR and the ICESCR. This paper will review the GA decision to examine the domestic applicability of human rights treaties in Hong Kong. Did the absence of a comprehensive domestic incorporation of the ICESCR impede the applicability of the rights thereunder? Can a constitutional right to work of refugees be derived from the ICCPR incorporated in Hong Kong via the HKBORO? This paper will also discuss the implications of the decision on the adequacy of legal protection of socio-economic rights in Hong Kong.