The Diminishing Status of the ICCPR in Hong Kong Following the Promulgation of the National Security Law

James Hing Pui Yen October, 2024

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The International Covenant on Civil and Political Rights (ICCPR), which has provided Hong Kong citizens with civil and political rights, has seen it’s normative force decline since the promulgation of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law).

The ICCPR is a multilateral treaty that enshrines civil and political rights of individuals.[1] It was adopted by the United Nations General Assembly on December 16, 1996.[2] As of June 2024, the ICCPR had 174 member parties and six other signatories that had not ratified the treaty, including the People’s Republic of China (PRC).[3] Towards the tail-end of Hong Kong’s (HK) time as a British colony, the Hong Kong Bill of Rights Ordinance (HKBORO) transposed provisions of the ICCPR into HK domestic law, providing citizens with civil and political rights guarantees.[4]

After the handover of HK from the United Kingdom to the PRC in 1997, the PRC National People’s Congress (NPC) promulgated The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law) pursuant to the Sino-British Joint Declaration on the Question of Hong Kong.[5] The Basic Law is a national law promulgated by the NPC, but functions akin to a constitution by providing, inter alia, the basic policies of the PRC on HK and the political structure of the domestic government.[6] Of particular importance is Article 39, which provides that:

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.[7]

In effect, this provision incorporated the ICCPR and its rights guarantees on a wholesale basis to HK. While the HKBORO remains in force, the Basic Law is on superior legal footing as a national law promulgated by the NPC. Still, both have served to entrench the ICCPR and its rights guarantees in HK jurisprudence.

On June 30, 2020, the NPC Standing Committee (NPCSC)[8] promulgated the National Security Law (NSL).[9] Passed largely as a means to curb the mass protests against an extradition bill, the NSL established four categories of crimes: secession, subversion, terrorism, and collusion with foreign organizations.[10] As of February 2024, all four categories have been used to arrest over 290 individuals, most of whom were involved with the 2019 anti-extradition bill protests.[11]

The alarmingly broad application of the NSL since its promulgation has created numerous conflicts with the ICCPR. Textually, the NSL is facially violative of the ICCPR’s provisions. For example, NSL Article 20 criminalizes peaceful actions or speech related to the political status of Hong Kong, Tibet, Xinjiang and Taiwan amongst others[12], which conflicts with ICCPR Article 19’s right to freedom of expression.[13] NSL Article 22 seemingly restricts the right of assembly, procession, and demonstration,[14] which conflicts with ICCPR Article 21’s right to peaceful assembly.[15] As applied, the broad application of NSL in prosecutions has further violated the ICCPR’s rights guarantees. The high-profile prosecution of Jimmy Lai Chee-Ying, a prominent and outspoken critic of the PRC, serves as a prime example. In his prosecution, the NSL was applied retroactively, which conflicted with ICCPR Article 15’s right to non-retroactive application of law and the international law general principle of non-retroactivity.[16] His choice of representation, though initially approved by HK courts, was subsequently denied by the NPCSC in circumvention of the domestic judicial system.[17] This violated ICCPR Article 14(3)(d), which provides the right to freely choose one’s legal assistance at trial.[18] Other issues in the case like the denial of a jury trial and bail potentially violate procedural guarantees in the ICCPR.[19]

Despite all these conflicts between the NSL and ICCPR, any judicial review by HK courts would be ultra vires. The HK judicial system’s authority originates from the Basic Law. But because both the Basic Law and the NSL are national laws promulgated by the NPC, they are on equal legal footing. In tandem with NSL Article 65, which places the power to interpret the NSL in the NPCSC,[20] the NSL is effectively immune from domestic judicial review. Thus, only the NPCSC would be able to review the NSL against the Basic Law.

In March 2024, the HK Legislative Council passed the Safeguarding National Security Ordinance (“Article 23”) [21] pursuant to the Basic Law Article 23 mandate that “[t]he Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government….”[22] The domestic legislation builds upon the NSL by further empowering the HK government and courts to prosecute under broadly defined crimes.[23] It remains to be seen what the effects of Article 23 will be on the application of the ICCPR in Hong Kong.

Although the role of the ICCPR in HK jurisprudence seems to have continually receded, there are some caveats. NSL Article 4 expressly provides that rights protections of the Basic Law and ICCPR continue to apply in Hong Kong and to NSL cases.[24] However, this provision has not always been adhered to as evidenced by the Jimmy Lai Chee-Ying prosecutions. Another caveat is that invocation of the ICCPR by HK courts in Article 23 criminal proceedings would not be ultra vires due to Article 23 being domestic legislation, and thus subject to judicial review against the Basic Law. Finally, it is important to reiterate that the PRC has yet to ratify the ICCPR.[25] With state consent being the basis of treaties in international law, the PRC is not yet bound to the specific provisions of the ICCPR.[26] Yet the PRC is obligated under the Interim Obligation provided by Article 18 of the Vienna Convention on the Law of Treaties to make good-faith commitments to ratify the treaty.[27] As more time passes, the argument that the PRC is no longer making such a good-faith effort becomes increasingly persuasive. More generally, the ICCPR forms a part of the International Bill of Human Rights, which imposes erga omnes obligations upon United Nations member states.[28] These obligations stand in distinct tension with the PRC’s continued non-ratification of the ICCPR.

Notwithstanding these caveats, it is evident that the ICCPR’s normative force has declined since the promulgation of the NSL. Given the introduction of Article 23, the status and future of the ICCPR in Hong Kong remains uncertain.

  1. G.A. Res. 2200A, International Covenant on Civil and Political Rights (Dec. 19, 1966).↑

  2. Id.↑

  3. U.N. Treaty Collection, International Covenant on Civil and Political Rights, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en (Oct. 6, 2024, 9:00PM).↑

  4. Constitutional and Mainland Affairs Bureau, An Introduction to Hong Kong Bill of Rights Ordinance, https://www.cmab.gov.hk/doc/en/documents/policy_responsibilities/the_rights_of_the_individuals/human/BORO-InductoryChapterandBooklet-Eng.pdf.↑

  5. A treaty signed by PRC and Britain, formally ending Hong Kong’s status as a British colony and returning the region to China. Gary Cheung, What is the Sino-British Joint Declaration and what does it have to do with Hong Kong’s extradition crisis?, South China Morning Post, Jul. 4 2019.↑

  6. Hong Kong: How is it run, and what is the Basic Law?, BBC (Jun. 30, 2022), https://www.bbc.com/news/world-asia-china-49633862.↑

  7. The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China.↑

  8. The permanent body of the NPC, which drafts and approves laws on a regular basis on behalf of the NPC, which only convenes once a year for approximately two weeks. NPC Observer, FAQs: National People’s Congress and Its Standing Committee (February 28, 2024), https://npcobserver.com/about-npc/.↑

  9. Promulgation of National Law 2020, (2020) Cap. L.N. 136 (H.K.)↑

  10. Hong Kong Free Press, Explainer: Hong Kong’s national security crackdown – month 44 (10:00, 2 March 2024), https://hongkongfp.com/2024/03/02/explainer-hong-kongs-national-security-crackdown-month-44/.↑

  11. Id.↑

  12. Congressional Research Service, China’s National Security Law for Hong Kong: Issues for Congress, 10 (2020).↑

  13. ICCPR, supra note 1.↑

  14. Congressional Research Service, supra note 10.↑

  15. ICCPR, supra note 1.↑

  16. Id.↑

  17. NPC Observer, Explainer: Hong Kong Government’s Request for NPCSC Interpretation of National Security Law in Jimmy Lai Case (November 30, 2022), https://npcobserver.com/2022/11/explainer-hong-kong-governments-request-for-npcsc-interpretation-of-national-security-law-in-jimmy-lai-case/#more-21274.↑

  18. ICCPR, supra note 1.↑

  19. See Lydia Wong et. al., Hong Kong’s National Security Law and the Right to a Fair Trial: A GCAL Briefing Paper (2021).↑

  20. ICCPR, supra note 1.↑

  21. Kelly Ng, Article 23: What is Hong Kong’s tough new security law?. BBC (Mar. 25, 2024), https://www.bbc.com/news/world-asia-china-68508694.↑

  22. Basic Law, supra note 7.↑

  23. Id.↑

  24. ICCPR, supra note 1.↑

  25. U.N. Treaty Collection, supra note 3.↑

  26. Annie Hsu, Should China Unsign the International Covenant on Civil and Political Rights?, Univ. of Pennsylvania Sch. of Arts & Sci. Center for the Study of Contemp. China (Sep. 30, 2019), https://cscc.sas.upenn.edu/node/3578.↑

  27. Id.↑

  28. Karl Zemanek, New Trends in the Enforcement of erga omnes Obligations 3 (2000).↑