Kong SPECIAL Administrative Region
1. The Committee
considered on Economic, Social and Cultural rights the initial report
submitted by China on articles 1 to 15 of the Covenant as applied
in the Hong Kong Special Administrative Region (HKSAR) (E/1990/5/Add.43)
at its 9th, 10th and 11th meetings (E/C.12/2001/SR.9-11), held on
27 and 30 April, and adopted, at its 29th meeting (E/C.12/2001/SR.24),
held on 11 May 2001, the following concluding observations.
2. The Committee
welcomes the submission of the well-prepared and detailed initial
report, which conforms in general with the Committee's guidelines
on reporting. The Committee also notes with appreciation the written
replies to its list of issues and the additional statistics provided
by HKSAR. The delegation's professionalism and openness contributed
to a fruitful and constructive dialogue.
B. Positive aspects
3. The Committee
warmly welcomes the ratification of the Covenant by China.
4. The Committee
warmly welcomes the withdrawal by HKSAR of reservations to articles
1 and 7 of the Covenant.
5. The Committee
welcomes the wide consultations undertaken by HKSAR with civil society
organizations and other interested parties as part of the preparation
of its initial report. The Committee notes with appreciation that
HKSAR made available to the public at large copies of the report.
6. The Committee
commends HKSAR for its efforts to provide adequate housing for Hong
Kong residents. In particular, the Committee notes with appreciation
old temporary housing accommodations have been demolished and their
occupants adequately housed in interim housing while waiting to be
Government provides interim housing for evicted squatters, victims
of domestic violence and families separated by divorce; and
structures in squatter communities erected before 1982, and therefore
protected by the relevant housing policy, have been provided in most
cases with basic services including water, sanitation and access to
roads, with a view to improving the living conditions of the residents.
7. The Committee
notes with satisfaction that the Equal Opportunities Commission established
in 1996 is effectively carrying out its mandate without interference
from the Government of HKSAR.
8. The Committee
notes with appreciation that the Committee's general comments are
valuable source materials consulted frequently by the Human Rights
Unit of the Justice Department.
9. The Committee
welcomes the delegation's assurance that all rights enshrined in the
Covenant contain certain justiciable aspects. Moreover, the Committee
notes with satisfaction that the Covenant is invoked in Hong Kong
10. The Committee
welcomes the establishment of a Women's Commission in HKSAR.
11. The Committee
commends the HKSAR programme for training unskilled and unemployed
workers with the objective of finding employment for them. The Committee
notes with appreciation that the Employers Training Board conducts
training programmes for unskilled women and provides them with allowances
during training courses.
C. Factors and difficulties impeding the implementation of the Covenant
12. The Committee
notes that issues regarding the right of abode in relation to permanent
residence and split families impede the enjoyment of economic, social
and cultural rights by the families affected by the reinterpretation
on 26 June 1999 by the National People's Congress Standing Committee
of article 24 of the Basic Law.
the "ultimate aim is the election of all the members of the Legislative
Council by universal suffrage" (article 68, Basic Law), the Committee
notes that the current arrangements for the election of the Legislative
Council include some undemocratic features which impede the full enjoyment
of economic, social and cultural rights in HKSAR.
14. The economic
policies of HKSAR, based essentially on the philosophy of "positive
non-interventionism", i.e. keeping taxes low and limiting government
expenditure to the provision of essential services, in accordance
with article 5 of the Basic Law, which guarantees a free trade, free
enterprise and low tax regime for at least 50 years, have had a negative
impact on the realization and enjoyment of the economic, social and
cultural rights of Hong Kong's inhabitants, which has been exacerbated
D. Principal subjects of concern
15. The Committee
regrets that HKSAR has not implemented a number of the recommendations
in its concluding observations of 1996, despite the delegation's assurance
that these must be given effect. The Committee wishes to reiterate
in particular its concern on the following issues:
fact that the Covenant's status in the HKSAR domestic legal order
continues to be different from that of the International Covenant
on Civil and Political Rights, the provisions of which have been incorporated
into domestic legislation;
failure of HKSAR to extend the prohibition of race discrimination
to the private sector;
failure of HKSAR to prohibit discrimination on the basis of sexual
orientation and age;
failure of HKSAR to establish a national human rights institution
with a broad mandate and its failure to establish adequate alternative
arrangements for the promotion of economic, social and cultural rights;
absence of protection against unfair dismissal and the lack of adequate
regulations on statutory minimum wage, working hours, paid weekly
rest, rest breaks and compulsory overtime pay;
denial of the right of foreign domestic helpers upon expiration of
their contract to freely seek employment and to protection from discrimination,
owing to the two-week rule;
lack of a comprehensive policy for the protection of children from
all forms of abuse.
16. The Committee
greatly regrets that some judgements of the High Court in HKSAR express
the opinion that the Covenant is "promotional" (Mok Chi Hung v.
Director of Immigration, judgement of 5 January 2001) or "aspirational"
(Chan To Foon v. Director of Immigration, judgement of 11 April
2001) in nature. As the Committee has confirmed on numerous occasions,
such opinions are based on a mistaken understanding of the legal obligations
arising from the Covenant.
17. The Committee
is concerned that the Women's Commission may not have appropriate
resources and powers to ensure that a gender perspective is integrated
into the formulation of policy.
18. The Committee
is gravely concerned about the widespread and unacceptable incidence
of poverty in HKSAR. It is especially concerned that a large number
of older persons continue to live in poverty without effective access
to social services.
19. The Committee
is deeply concerned that HKSAR lacks adequate institutional arrangements
to ensure the formulation and implementation of comprehensive, integrated,
consistent and effective anti-poverty strategies.
20. The Committee
expresses its regret that in relation to the care of persons with
mental illness, HKSAR is reluctant to authorize the prescribing of
new drugs that are more costly but more effective and have been shown
to produce fewer side effects for the mentally ill. In addition, the
Committee notes with concern the apparent lack of initiative on the
part of HKSAR to undertake public education to combat discrimination
against those with mental disabilities.
21. The Committee
is concerned that many individuals, including women who are homemakers,
persons with disabilities and older persons, are excluded from the
Mandatory Provident Fund Scheme.
22. The Committee
is deeply concerned about the hardship arising from HKSAR policies
on permanent residence and split families.
23. The Committee
expresses its concern about the reported increase in the incidence
of child abuse and suicide among the youth.
24. The Committee
is concerned that the age of criminal responsibility is set at the
young age of seven years.
acknowledging that HKSAR has made progress in relation to housing,
the Committee remains deeply concerned that the right to housing of
many people in Hong Kong remains unfulfilled. In the Committee's view,
bed-space apartments, or cage homes, are an affront to human dignity
and roof-top structures constitute a grave risk to the life and health
of their inhabitants.
26. The Committee
is concerned that the Public Order Ordinance may be used to restrict
trade union activities, such as peaceful campaigns to promote labour
rights, which are protected by article 8 (c) of the Covenant.
E. Suggestions and recommendations
27. The Committee reminds HKSAR that the provisions of the Covenant
constitute a legal obligation on the part of the States parties. Thus,
the Committee urges HKSAR not to argue in court proceedings that the
Covenant is only "promotional" or "aspirational" in nature.
28. The Committee
again urges HKSAR to implement the Committee's suggestions and recommendations
contained in its concluding observations of 1996, as well as the current
ones, and to undertake whatever relevant concrete measures may be
necessary towards their implementation.
29. The Committee
recommends that HKSAR withdraw its reservation on article 6 and the
interpretative declaration replacing its former reservation on article
30. It is
the Committee's view that the failure by HKSAR to prohibit race discrimination
in the private sector constitutes a breach of its obligations under
article 2 of the Covenant. The Committee calls upon HKSAR to extend
its prohibition of race discrimination to the private sector.
31. The Committee
also urges HKSAR to prohibit discrimination on the basis of sexual
orientation and age.
32. The Committee
urges HKSAR to establish a national human rights institution consistent
with the Paris principles (1991) and the Committee's General Comment
No. 10. Until such an institution is established, the Committee urges
HKSAR to enhance its measures for the promotion of economic, social
and cultural rights.
33. The Committee
urges HKSAR to provide the Women's Commission with sufficient powers
and resources to enable it to improve the status of women in Hong
Kong, and to integrate gender in its policy-making and ensure wider
participation of women in all spheres of public life.
34. The Committee
reiterates its recommendation that HKSAR review its policy in relation
to unfair dismissal, minimum wages, paid weekly rest time, rest breaks,
maximum hours of work and overtime pay rates, with a view to bringing
such policy into line with the HKSAR obligations as set forth in the
35. The Committee
urges HKSAR to enact legislation on equal pay for work of equal value
as provided for in the Covenant.
36. The Committee
urges HKSAR to adopt a comprehensive pension system that provides
adequate retirement protection for the entire population, in particular
for housewives, self-employed persons, older persons and persons with
37. The Committee
recommends that the Public Order Ordinance be reviewed with a view
to amending its provisions to ensure freedom of trade union activities
as provided for under article 8 (c) of the Covenant.
38. The Committee
strongly recommends that HKSAR establish either an inter-departmental
anti-poverty unit or an independent anti-poverty commission, to conduct
relevant research, formulate anti-poverty strategies and monitor all
policies for their impact on poverty.
39. The Committee
urges HKSAR to ensure that Comprehensive Social Security Assistance
levels permit recipients a reasonable standard of living consistent
with articles 9 and 11 of the Covenant.
formulating and implementing its policies on permanent residence and
split families, HKSAR is urged to give the most careful attention
to all the human rights dimensions of the issue, including articles
2 (2), 3 and 10 of the Covenant. The Committee reminds HKSAR that
any limitations in connection with article 10 must be justified in
relation to each element set out in article 4. The Committee urges
HKSAR to reconsider extending the "concession" made by HKSAR following
the reinterpretation of 26 June 1999.
is urged to enhance the transparency of all relevant processes concerning
permanent residence and split families. For example, the Committee
recommends that all data, appropriately disaggregated (e.g. by origin
of applicant), are made publicly available and tabled in the Legislative
Council every six months.
42. The Committee
calls upon HKSAR to adopt urgent measures to address the problems
leading to youth suicide and all forms of child abuse.
43. The Committee
calls upon HKSAR to amend its laws to raise the age of criminal responsibility
so as to ensure the rights of the child under article 10 of the Covenant.
44. The Committee
calls on HKSAR to give urgent attention to the housing rights of all
Hong Kong residents, including squatters and those living in roof-top
structures and bed-space apartments or cage homes. In its next periodic
report, HKSAR is requested to give special attention to the impact
of current policies on squatters, roof-top structures and bed-space
apartments or cage homes. In particular, the Committee would like
HKSAR to comment on the operation and efficacy of the Bed-space Apartments
Ordinance (chap. 447).
45. The Committee
recommends that HKSAR undertake a comprehensive review of mental health
policy and adopt effective measures to ensure that persons with mental
illness enjoy the right to adequate and affordable health care. The
Committee urges HKSAR to provide public education to combat discrimination
against persons with mental illness.
46. The Committee
requests that HKSAR disseminate these concluding observations as widely
as possible among its citizens.
47. The Committee
requests HKSAR to address, in its second periodic report, the implementation
of these concluding observations.
48. The Committee
requests HKSAR to submit information on its progress in implementing
the Committee's recommendation in paragraph 30 (race discrimination)
by 30 June 2003. The Committee requests HKSAR to submit its full second
periodic report in accordance with the prescribed dates of submissions.