International Law in the Domestic Order

International human rights law and refugee protection in Asian states not party to the 1951 Convention Relating to the Status of Refugees

Principal Investigator: Kelley Loper
Project Period: 01/2018-12/2019
Funding Source: Hong Kong Research Grants Council, General Research Fund

Some have questioned the continuing relevance of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Refugee Convention). International human rights law has expanded rapidly since 1951 and, in principle, applies to all human beings including refugees. General and specialised United Nations (UN) treaties and the interpretive materials produced by human rights monitoring bodies have further clarified states’ obligations to protect refugees and other migrants beyond the confines of the Refugee Convention. This study aims to examine the application of international human rights law to refugee protection in Asian states not party to the Refugee Convention. The potential impact of more recent international human rights treaties on the protection of refugees has particular significance in Asia since only nine of twenty-seven states and jurisdictions in three Asian sub-regions have acceded to the Convention. Although this study will consider all UN core international human rights instruments, it will focus on the application of CEDAW and the CRC in Asia in particular. It will analyse the impact of states’ interaction with the international human rights regime on the development of refugee law in the region.

The United Nations Convention on the Rights of Persons with Disabilities: Implementation in the Chinese Context

Principal Investigator: Kelley Loper
Project Period: 04/2017-09/2018
Funding Source: HKU Seed Funding for Basic Research

 China was one of the first states to sign (in 2006) and ratify (in 2008) the UN Convention on the Rights of Persons with Disabilities (CRPD), the most recent of the core UN human rights treaties. China submitted its state report to the Committee on the Rights of Persons with Disabilities (the Committee), the expert monitoring body that oversees states parties implementation of their obligations under the Convention, in 2010 and the Committee reviewed the report in one of its earliest sessions in September 2012. Despite this apparent enthusiasm and support for the CRPD, China‟s record of implementation remains mixed. The government‟s initial state report, its discussion with the Committee during the first review process, and recent Chinese policies in the field of disability rights, suggest that Chinese policy may not fully comply with the Convention‟s provisions and the Committee‟s interpretations. This project will test the hypothesis that Chinese policies since ratification of the CRPD have not fully complied and continue to be influenced by the medical model of disability. It will consider China’s reaction to the CRPD and its implementation of its obligations.

Asia-Pacific Journal on Human Rights and the Law
Editors: Simon Young and Kelley Loper
Project Period: 24/06/2016 onwards
Funding Source: EUR4,000 per volume(around HK$40,000)

Balancing the Scales of Procedural and Substantive Justice: Assessing the Efficacy of Civil Mediation Reform 

Principal Investigator: Shahla Ali 
Project Period: 07/2014 – 07/2016 
Funding Source: HKU General Research Funds

Legal Assistance for Asylum Seekers and Torture Claimants in Hong Kong 
Principal Investigator: Kelley Loper 
Co-Investigator: Simon Young 
Project Period: October 2009- September 2012 
Funding Source: Research Grants Council Public Policy Research Grant 2009/2010 
This study aims to identify alternative approaches to the provision of legal assistance to asylum seekers and torture claimants through an examination of relevant legal assistance schemes in other common law jurisdictions. The project will determine gaps in Hong Kong law and policy and then assess whether any elements of the comparative models investigated are appropriate for adoption in the Hong Kong context. The study seeks to identify an effective legal aid and assistance model for claimants and to determine what criteria can be used to measure suitability of comparative models for potential application in Hong Kong.

Trafficking of Women into Hong Kong 
Principal Investigators: Robyn Emerton, Karen Joe Laidler and Carole Petersen 
Project Period: November 2003 – April 2006 
Funding Source: HKU Small Project Funding Programme 
This project started in 2000, with the publication of Emerton’s research paper on Trafficking of Women into Hong Kong for the purposes of Prostitution: Preliminary Research Findings. The paper was the first academic study on the topic of trafficking into Hong Kong, and generated much public debate on the issue, both locally and regionally. Shortly after the paper’s publication, in February 2001, the CCPL hosted a Round Table on Trafficking of Women into Hong Kong for the Purposes of Prostitution, at the University of Hong Kong. The event helped to foster links between different groups and individuals working in the area, and to provide impetus for further research and action. In 2003, Emerton, Petersen and Laidler (from the Centre for Criminology at the University of Hong Kong) were awarded a small project grant by the University Grants Council, to further their research in this area. In particular, the team was granted access to three correctional institutes in Hong Kong, enabling research assistant Garlum Lau to conduct 58 in-depth interviews with Mainland Chinese women imprisoned for criminal and/or immigration offences relating to their involvement in prostitution in Hong Kong. The project aimed to assess the background of the women, recruitment methods, work conditions and the level of control exercised over them. It also aimed to evaluate the extent to which the women might have been trafficked into Hong Kong, under the modern international definition of the term. In April 2006, the CCPL, in conjunction with the Centre for Criminology, held a round-table to present and discuss the findings of this project. Attendees included officials from various government departments, members of the police force, the judiciary and the bar, consular officials, non-governmental organisations, and academics. Emerton and Petersen have also examined the human rights situation of Filipinas working as nightclub hostesses in Hong Kong, including the extent to which they might be considered trafficked.

Refugees 
Principal Investigator: Kelley Loper 
Project Period: 
Funding Source: 
The Refugee Convention and Protocol are the key international legal documents that set out the definition of a refugee and the rights of refugees to adequate protection. These instruments have not been extended to the Hong Kong SAR, although they apply to the People’s Republic of China and the Macau SAR. In addition, a protected status for refugees or asylum seekers does not exist in Hong Kong law or policy. The SAR government’s current approach is to treat all arrivals in accordance with the Immigration Ordinance (Cap. 115) and immigration guidelines which do not mention or require different treatment for asylum seekers or refugees. Apart from a mechanism to assess torture claims under Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”), the Hong Kong government has not established refugee status determination procedures. The Hong Kong government has stated in the past that it does not intend to request extension of the Refugee Convention to the SAR and believes that extension is undesirable. It has also has stated that it does not plan to implement a refugee status determination mechanism and instead relies on the UNHCR’s Hong Kong sub-office to process asylum seekers’ applications in Hong Kong. There is no formal system for directing asylum seekers to the UNHCR, however, and access to the UNHCR depends on individual initiative and knowledge or on the discretion of immigration officials who may or may not contact the UNHCR sub-office when approached by someone claiming asylum.

CEDAW in Hong Kong
The CEDAW in Hong Kong project is an on-line resource of information on the application of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to Hong Kong. From 1-2 February 1999 the United Nations CEDAW Committee heard the first Government report on behalf of the Hong Kong Special Administrative Region since the resumption of sovereignty over Hong Kong by the Peoples’ Republic of China on 1 July 1997. We feature government reports to the Committee, shadow reports by Hong Kong NGOs and Committee conclusions as well as background information on CEDAW in Hong Kong and advice for NGOs lobbying the CEDAW Committee.

The January 2014 Joint Submission to CEDAW Committee is the culmination of the effort that began with the CEDAW Writing Workshop in the hope of bringing together as many Hong Kong civil society organisations as possible to contribute to a joint submission to the CEDAW Committee for Hong Kong’s upcoming hearing in October. Over the months, more and more NGOs have participated in the drafting exercise and contributed to the writing up of the report. In collaboration with the Hong Kong Human Rights Monitor, the Women’s Coalition on Equal Opportunities and the Women’s Studies Research Centre at HKU, CCPL has together with 63 NGOs across Hong Kong submitted the joint submission for the CEDAW Committee’s information as part of the monitoring process under the CEDAW Mechanism. This will be useful to the Committee at its Pre-sessional meeting in early March 2014 and later in October 2014, when the HKSAR Government will be reporting on its progress under CEDAW.

Other resources

Draft Report Outline of Second Report under the Convention on the Elimination of All Forms of Discrimination Against Women (709KB, PDF), September 2002

CEDAW Impact Study on-line The first CEDAW Impact Study Final Report, with country reports on Canada, Germany, Japan, Nepal, the Netherlands, Panama, South Africa, South Korea, Turkey and Ukraine. Introduction by Andrew Byrnes and Jane Connors. (Toronto: Centre for Feminist Research, York University and the International Women’s Rights Project, 2000)

Second Report on the Hong Kong Special Administrative Region under the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) (English and Chinese)