Urgent Business: Hong Kong, Freedom of Expression and 1997
has the broader scope suggested by the ICCPR's Article 19 which guarantees the right to seek, receive and impart information of all kinds.
Such a case would involve constitutional matters concerning the relationship between the central authorities and the SAR, and therefore the interpretation or adjudication of the issue passes from the jurisdiction of the SAR courts to the Standing Committee of the NPC. What is properly a matter for the SAR judiciary would therefore be resolved by China's policy-makers, presumably in a manner which would reflect their own best interests. A similar possibility may be envisaged for issues of "subversion" which also fall under Article 23.
Another important concern has to do with the very efficacy of Article 39 of the Basic Law, which declares that the ICCPR as applied to Hong Kong will remain in force after 1997. China is not a signatory to the Covenant and, therefore, unless it does sign, is under no direct obligation to ensure its proper application in Hong Kong beyond 1997. At best, perhaps, China has a duty to comply with the ICCPR as part of its obligations to Britain under the Sino-British Joint Declaration, which is a recognized international treaty lodged with the United Nations. However, in view of Beijing's past attitudes towards the bilateral treaty, this now seems almost peripheral.
In hearings on Britain's Third Periodic Report on Hong Kong under the ICCPR in 1991, the UN Human Rights Committee were unhappy, most of all, with the utter lack of any progress on the issue of the applicability of the Covenant after 1997. The question had been raised at previous hearings in 1988, when the British government had assured the Committee that discussions on China's accession to the ICCPR would take place in the Sino-British Joint Liaison Group.
One of the Committee's key concerns was the question of continued international monitoring of human rights after 1997. There was unanimous agreement that it was essential that periodic reporting to the Human Rights Committee (under Article 40 of the Covenant) should continue beyond the handover. The rights of Hong Kong people, after all, should not be any less after 1997 than before: this, in its broadest sense, was what the Joint Declaration had agreed to be the basis of the handover, Committee members noted.
Some Committee members argued also that there was at least some basis in the Joint Declaration for ensuring continued monitoring. This was evident from the phrasing "the provisions of the ICCPR ... as applied to Hong Kong shall remain in force", they said, which implied that not only the substantive rights provisions of the ICCPR (articles 1-27) remain in force, but that all currently operative provisions (article 1-41), including the requirement for regular reporting under Article 40, remain in force.
It was Britain's solemn treaty obligation under the Joint Declaration, Committee members warned, to ensure both the ICCPR's continued applicability beyond 1997, and that a mechanism be found by which international monitoring could continue. There has been no progress since on this issue.
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