The Centre for Comparative and Public Law was established in 1995 within the Faculty of Law of The University of Hong Kong. The purposes of the Centre are to promote research and other activities in the field of public and comparative law. The Centre has organised many seminars relating to international law and human rights in Hong Kong, and has active research projects covering such topics as the application of international treaties to Hong Kong after 1 July 1997, the implementation of international human rights standards in Hong Kong law and practice; and equality and the law.

The Director of the Centre is Andrew Byrnes; the Deputy Director is Peter Feng. Researchers at the Centre include Kirstine Adams and Moana Erickson (Henry Luce Scholar visiting with the Centre in 1998-99).

The submission has been prepared by Andrew Byrnes, with the assistance of Moana Erickson, Kirstine Adams and Carole Petersen. It draws on material that has been collected through a number of Centre projects, including the Hong Kong Treaty Project (made possible by a grant from the Hong Kong Research Grants Council) and a number of research projects funded by the Committee on Research and Conference Grants of The University of Hong Kong.

Further information about the Centre and the CEDAW Convention is available on the Centre's website:

Centre for Comparative and Public Law,
Faculty of Law,
The University of Hong Kong,
Pokfulam Road.
HONG KONG

Tel: (852) 2859 2951
Fax: (852) 2559 3543
email: abyrnes@hkusua.hku.hk

The University of Hong Kong 1998

The contents of this submission may be freely reproduced, provided that acknowledgement is made of the original source.

Submission and publication of reports under the CEDAW Convention and other human rights treaties

1. We recommend that the Legco Panel on Home Affairs urge the Hong Kong SAR Government to:

• make publicly available reports under human rights treaties in respect of Hong Kong as soon as they have been completed and despatched to the Ministry of Foreign Affairs; and
• take up with the Ministry of Foreign Affairs the question of how to ensure that Hong Kong reports prepared in timely fashion are submitted expeditiously to the United Nations and considered within a reasonable period by the responsible committee; and
• submit every two years to the Legislative Council a report outlining the steps taken to implement the Convention in the previous two years.
  
  

Implementation by the Hong Kong SAR Government of recommendations of UN treaty bodies

2. We recommend that the Panel request the Government to provide it, prior to the hearing before the CEDAW Committee in January 1999, with a detailed analysis of:

• the recommendations made by United Nations treaty bodies in the period 1994-1997 in their concluding observations ;
• the steps the Hong Kong Government has taken to give effect to those recommendations; and
• where recommendations have not been implemented, why this has not been done.
  
  

Incorporation of gender impact assessment into government policy-making and the legislative process

3. We recommend that the Panel:

• call on the Government to establish an effective machinery in the administration for the implementation of the Convention and for ensuring that the gender impact of policies is identified and evaluated in advance and incorporated into the formulation of the policies;
• call on the Government to formulate, in close consultation with women's groups and other appropriate parties, a regional plan of action for women, as called for by the Beijing Platform for Action adopted in 1995;
• insist that all new bills presented to the Council and requests for funding be accompanied by an analysis of the gender impact of the measures (as is required for financial implications and is proposed in relation to environmental impact);
• insist that all annual reports and other government reviews include an assessment by the reporting agency of the gender impact of their work to the extent that this is appropriate; and
• request the Government to provide a breakdown to the number of women and men who serve on the various statutory advisory boards and other advisory boards and to identify the steps it adopts (or could adopt) to ensure a representative number of women serve on these bodies.
  
  

Reservations and understandings^**

4. We recommend that the Panel request the Government to prepare, by no later than 31 December 1998, a report:

• indicating whether similar reservations have been made to obligations under other conventions which are in substance the same as the obligations in the CEDAW Convention which are subject to reservations;
• explaining in detail the practical impact of these reservations and understandings and why it considers their retention to be necessary; and
• providing a credible timetable for the review and removal of those reservations and understandings whose retention cannot be compellingly justified.
  
  

A. Introduction	1
B. The CEDAW Convention and the CEDAW Committee	2
C. China, Hong Kong and the CEDAW Committee	2
D. Implementation by the Hong Kong Government of earlier recommendations by the UN treaty bodies	4
E. Need for gender impact assessment in the formulation and implementation of laws and policy	4
F. Reservations, declarations and understandings	5
The position under the Convention Reporting requirements in respect of reservations Hong Kong's reservations and understandings	5 6 6
Reservations Reservation relating to immigration legislation The preferential rights and privileges of New Territories male indigenous villagers Discrimination in the field of pensions Discrimination in relation to qualifying benefits for protection against pregnancy/maternity discrimination and maternity leave	8 8 10 10 10
Understandings Treatment favourable to women Exemption of religious organisations Contractual provisions	11 11 12 12
G. Conclusion	13

1 This submission examines a number of aspects of the Initial Report on the Hong Kong Special Administrative Region under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women ("HKSAR Initial Report").¹ Since we are aware that other organisations will be making submissions to the Panel on many of the areas covered by the CEDAW Convention and the HKSAR Initial Report, this submission is limited to a number of general legal and institutional aspects of the application of the CEDAW Convention to Hong Kong and the Government's report. The submission:

1. briefly reviews the reporting procedure established by the Convention and the application of the Convention and that procedure to Hong Kong (paras. 3-11);

2. makes a number of recommendations of steps the Panel may wish to take in relation to:
   • future reports under human rights treaties (para. 11)

   • the implementation by the Hong Kong Government of earlier recommendations made by the other UN treaty committees (paras 12-14)

   • the incorporation of a gender-impact assessment into all government policy-making and the legislative process (paras 15-18)

3. briefly examines the reservations and understandings which the PRC government has made in relation to the Convention's application to Hong Kong, calls for a general review of these, and the removal of most of them. (paras 19-49)

2 The principal recommendations made have been compiled in a separate executive summary.

3 The Convention on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations in 1979. There are presently 162 countries that have accepted the Convention as binding on them under international law by ratifying or acceding to it (known as "States parties"). China ratified the Convention in 1981; the United Kingdom did so in 1986. It was extended to Hong Kong by the United Kingdom Government with effect from 14 October 1996.

4 Article 18 of the Convention requires each State party to submit an initial report to the United Nations within one year of the entry into force of the Convention, and every four years thereafter. These reports are considered by the Committee on the Elimination of Discrimination against Women (the CEDAW Committee). This committee consists of 23 members, who are elected by the States parties; the Convention requires them to be both independent and expert in the fields covered by the Convention. The CEDAW Committee meets twice a year in New York. Its review of country reports involves public hearings with representatives of the government, as well as taking into account information supplied by specialised agencies and non-governmental organisations. Following its review of a report, the Committee adopts concluding comments, which set out what it considers to be the priority issues for action and specific recommendations to the State party.

5 China submitted its combined 3rd and 4th periodic reports to the CEDAW Committee in 1997. It submitted an updating report on Mainland China, together with the initial report in respect of Hong Kong, at the end of August 1998. These reports are scheduled to be considered by the CEDAW Committee at its 20th session, to be held in New York from 19 January- 5 February 1999.

6 The arrangements for the preparation and submission of reports in respect of Hong Kong appear to have followed the previous practice under British rule, namely the Hong Kong Government prepares the report, which is submitted to the United Nations through the PRC Ministry of Foreign Affairs (previously through the Foreign and Commonwealth Office).

7 The initial Hong Kong report was due to be submitted to the United Nations by 14 October 1997. It appears that the report was completed by that time, but it was not submitted to the United Nations by the Ministry of Foreign Affairs until nearly a year later. The reason for this delay was apparently the desire of the Central People's Government to submit both the Hong Kong report and the report updating the combined 3rd and 4th Mainland reports at the same time. (Similar delays also occurred under British rule, the result of waiting for reports from all dependent territories to be ready for submission.)

8 This procedure and the resulting delay has had a number of unfortunate consequences:

1. the report in respect of Hong Kong was already one year out of date when submitted;

2. the Hong Kong community was denied access to the report for a year after its completion; and

3. the delayed release of the report meant that a relatively limited time was available for discussion and critique of the report by the local community before the CEDAW Committee hearing.

Since one of the primary functions of the reporting procedure is the public discussion of the issues raised in the government report and a local assessment of the implementation of the Convention, the procedure adopted in this case has hindered rather than facilitated this process.

9 Similar problems may well arise when reports under other human rights treaties are submitted in the future. It appears that the Hong Kong reporting timetable is likely to be changed to correspond to the timetable for the submission of reports in respect of Mainland China. Hong Kong's record in recent years so far as the timely preparation and submission of reports has been extremely good; the Chinese record has been less so. For example, while China's initial report under the Convention (due in 1982) was only a few months late, its second report (due in 1986) was submitted only in 1989, and its third report (due in 1990) and fourth report (due in 1994) were submitted as one combined report in 1997. It is a matter of some concern that the submission of future Hong Kong reports, prepared on time, may be delayed, and during this time will be unavailable for public scrutiny and discussion.

10 There are a number of ways in which these problems might be avoided. One way would be for China to submit Hong Kong's reports separately and ask for them to be reviewed separately (as happened on a number of occasions prior to 1 July 1997). The second would be for China to submit the SAR reports to the United Nations as soon as they have been received from the SAR Government. A third option, which could be adopted in any event, would be for the SAR Government to release its report once it has been finalised and sent to Beijing (which has undertaken not to change the terms of the SAR's reports). Finally, we consider that the submission of a report every two years by the Government to the Legislative Council on the steps taken to implement the Convention would be an effective way of ensuring that continued attention was given to the obligations it imposes.

11 We recommend that the Legco Panel urge the Hong Kong Government to:

1. make publicly available reports under human rights treaties in respect of Hong Kong as soon as they have been completed and despatched to the Ministry of Foreign Affairs; and

2. take up with the Ministry of Foreign Affairs the question of how to ensure that timely prepared Hong Kong reports are submitted expeditiously to the United Nations and considered within a reasonable period by the responsible committee; and
3. submit to the Legislative Council every two years a report outlining the steps taken to implement the Convention in the previous two years.

12 Reports on Hong Kong have been considered by United Nations treaty bodies on 8 occasions since late 1994. On each occasion the treaty committee concerned has drawn up a detailed list of recommendations of the steps the Government should take to implement more effectively its obligations under the treaty in question. These recommendations relate to many different rights, including the right to be free from discrimination.

13 The follow-up of hearings before UN treaty bodies by the legislature is a critical component of the effective implementation of human rights. However, on only one occasion did the Government submit a detailed response to the Legislative Council setting out its response to the individual findings and recommendations of a treaty committee. There has been no comprehensive review of the recommendations made in thi speriod, whether Government has agreed to implement the recommendation and, if not, why not. In our view the first occasion on which Hong Kong is to appear before a UN treaty body as a Special Administrative Region of China provides an appropriate occasion to draw up a balance sheet of the extent to which these recommendations have been implemented in Hong Kong.

14 We therefore recommend that the Panel request the Government to provide it, prior to the hearing before the CEDAW Committee in January 1999, with a detailed analysis of:

1. the recommendations pertaining to Hong Kong made by United Nations treaty bodies in their concluding observations in the period 1994-1997;

2. the steps the Hong Kong Government has taken to give effect to those recommendations; and

3. where recommendations have not been implemented, why this has not been done.

15 There is a clear need for the integration of an analysis of the gender impact of laws and policies into all government activities, especially new initiatives. This requires not only the establishment of an influential office in government with responsibility for the status of women, but also the integration of a gender analysis into the work of all bureaux and departments.

16 Many government policies appear to have formulated policies without adequate regard to their gendered impact. One example is the Government's recent proposal to generate new jobs by undertaking of large infrastructure projects. This has been put forward on the basis of creating jobs for the community, as if these jobs were gender-neutral. In fact the Government's own figures in the HKSAR Report show that only 6% of those employed in the construction industry are women. What the Government is therefore doing is creating new jobs for men. No mention is made of this fact, nor is there any discussion of the implications of the commitment of these large sums of money to these projects on other initiatives that might create more jobs for women.

17 This underlines the need for an across-the board incorporation of gender issues into all policy-making (as well as ensuring that the policy-making bodies themselves have a representative number of women serving on them).

18 We believe that the Panel can contribute to this in a number of ways and recommend that the Panel:

1. call on the Government to establish an effective machinery in the administration for the implementation of the Convention and for ensuring that the gender impact of policies is identified and evaluated in advance and incorporated into the formulation of the policies;

2. call on the Government to formulate, in close consultation with women's groups and other appropriate parties, a regional plan of action for women, as called for by the Beijing Platform for Action adopted in 1995;

3. insist that all new bills presented to the Council and requests for funding be accompanied by an analysis of the gender impact of the measures (as is required for financial implications and is proposed in relation to environmental impact);

4. insist that all annual reports and other government reviews include an assessment by the reporting agency of the gender impact of their work to the extent that this is appropriate; and

5. request the Government to provide a breakdown of the number of women and men who serve on the various statutory advisory boards and other advisory bdies and to identify the steps it adopts (or could adopt) to ensure that a representative number of women serve on these bodies.

The position under the Convention

19 The CEDAW Convention has, together with the Convention on the Rights of the Child, been subjected to an extremely large number of reservations to its substantive provisions, many of them extremely broad and apparently inconsistent with the object and purpose of the Convention (and therefore invalid under international law). The CEDAW Committee, the Beijing Women's Conference and the States parties to the Convention as members of the United Nations, have called on States parties to limit their reservations, to define them narrowly and precisely, to keep them under review, and to withdraw them as soon as possible.

20 One other feature of reservations under the CEDAW Convention is that many States parties have entered reservations limiting their obligations under that Convention while accepting the identical obligations under other human rights treaties without reservation. (This is the case in relation to a number of Hong Kong's reservations.) For example, many of the States parties which have entered reservations to the Convention have accepted without reservation the obligation not to discriminate and to ensure equality before the law and equal protection of the law contained in article 26 of the International Covenant on Civil and Political Rights (the equivalent of article 22 of the Hong Kong Bill of Rights; incorporated as part of Hong Kong law by article 329 of the Basic Law).

21 Under international law, reservations to the CEDAW Convention cannot affect obligations under other treaties; the State must still observe those norms and implement them domestically. The CEDAW Committee (among others) has called on States to withdraw such reservations if it has already accepted the same obligation without reservation under another treaty.

Reporting requirements in respect of reservations

22 The Committee requires States parties in their reports to:

"indicate why it con-sidered the reservation to be necessary and whether reservations the State Party may or may not have entered on obliga-tions with regard to the same right in other conventions are consis-tent with the reservations to the Conven-tion on the Elimination of All Forms of Discrim-i-na-tion against Women, as well as the precise effect of the reservation in terms of nation-al law and policy. It should indicate the plans that it has to limit the effect of reservations and ultimately withdraw them and, when-ever possible, specify a timetable for with-drawing them."²

Hong Kong's reservations and understandings

23 The CEDAW Convention applies to Hong Kong subject to a number of "reservations" and "understandings".³ These reservations are intended to define or limit the obligations of the Government under the Convention, while the understandings are intended to state the Government's interpretation of particular provisions of the Convention (which it considers to be consistent with the Convention). This motley collection of reservations and understandings has been inherited from those originally entered by the United Kingdom and many of them are unclear in scope, unnecessary, undesirable on policy grounds, or limit obligations identical to those applicable to Hong Kong without reservation under other treaties. Following the transfer of sovereignty, it is an opportune time to review and discard most of these statements. We consider that all these reservations and understandings should be subject to an expeditious and detailed review and that most of them should be withdrawn.

24 The substantive reservations applicable to Hong Kong are:

1. reservation of the right to discriminate under immigration laws as regards persons who do not have the right to enter or remain in Hong Kong;

2. reservation of the right to continue to apply laws enabling indigenous male villagers in the New Territories to exercise certain rights over property and to enjoy certain privileges in respect of land and property;

3. reservation of the right to discriminate against women in legislation relating to pensions and retirement and similar benefits; and

4. reservation of the right to apply "any non-discriminatory qualifying period of employment" for women to benefit from provisions protecting against dismissal on the ground of pregnancy and the entitlement to maternity leave.

25 The statements labelled understandings applicable to Hong Kong are:

1. that laws, regulations, customs or practices that treat women more favourably, whether temporarily or in the longer-term, do not constitute discrimination against women within the meaning of article 1 of the Convention;

2. that the obligations under the Convention do not extend to the affairs of religious denominations or orders in Hong Kong;

3. that, where some terms of a contract are discriminatory, only those terms and not the whole contract will be void.

26 The initial report in respect of Hong Kong fails to respond to a number of aspects of the Committee's reporting guidelines dealing with reservations. (These are discussed in detail below in relation to each reservation and understanding.)

27 We recommend that the Panel request the Government to prepare, by no later than 31 December 1998, a report which would:

1. indicate whether similar reservations have been made to obligations under other conventions which are in substance the same as the obligations in the CEDAW Convention which are subject to reservations;

2. explain in detail the practical impact of these reservations and understandings and why it considers their retention to be necessary; and

3. provide a credible timetable for the review and removal of those reservations and understandings whose retention cannot be compellingly justified.

Reservations

Reservation relating to immigration legislation

28 The Chinese government has continued the application of the reservation originally entered by the UK Government relating to immigration law and policy. The reservation reads:

"3. The Government of the People's Republic of China reserves, for the Hong Kong Special Administrative Region, the right to continue to apply relevant immigration legislation governing the entry into, stay in and departure from the Hong Kong Special Administrative Region as may be deemed necessary from time to time. Accordingly, acceptance of article 15, paragraph 4, and of the other provisions of the Convention is subject to the provisions of any such legislation as regards persons not at the time having the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region."

29 This reservation reflects similar reservations made in respect of Hong Kong under the other major human rights treaties applicable to Hong Kong (other than the Convention against Torture). These are designed largely to immunise Hong Kong's immigration law and practice from scrutiny for its conformity with international human rights standards (especially the right to respect for family life and the rights of the child). The government report simply reiterates the reservation and provides no explanation of its effect in practice or any reason for maintaining it.⁴

30 Whether one agrees or not with the view that Hong Kong's immigration policies should not be subject to review against human rights norms more generally, there appears to be no justification at all for the Government's reserving to itself the right to discriminate against women in its immigration laws and policies. The Government persuaded the Legislative Council to write this exemption into section 21 of the Sex Discrimination Ordinance (Cap 480), which obliges the Government not to discriminate on the basis of sex in the performance of its functions or the exercise of its powers. That section does not apply to any act done pursuant to immigration legislation "as regards a woman not having the right to enter and remain in Hong Kong".

31 When the Government proposed this provision during the drafting of the Sex Discrimination Ordinance, the Home Affairs Branch was asked to identify those instances in which Hong Kong immigration law and practice discriminated on the basis of sex. No examples were given, either of the actual law and practice,⁵ or of hypothetical cases. Accordingly, there could be no discussion of whether such instances did amount to discrimination and whether, nevertheless, the Government should be free to continue to discriminate. It is difficult to conceive of cases in which discrimination against women in immigration could be plausibly justified in the modern world (common examples in the past have included the less favourable treatment of women who wish to bring their husbands to live with them, as opposed to men who wish to bring their wives to live with them; "virginity tests" and discrimination in nationality laws).⁶

32 We recommend that the Panel request the Government:

(a)to provide specific details of any aspects of Hong Kong immigration law and policy that differentiate on the basis of sex, marital status, pregnancy or family responsibility;

(b) (i) to indicate whether (and why) it considers that any of these would amount to discrimination against women within the meaning of the Convention (or could reasonably be argued to do so); and

    (ii) if so, what justification (if any) the Government puts forward for the continued adoption of such discriminatory laws or policies.

33 If the Government is not able to identify such instances, or is unable to provide a compelling justification for any instances it can identify, there seems to be no reason to maintain either the reservation to the Convention or the limitation in section 21 of the Sex Discrimination Ordinance. If this turns out to be the case, we would urge the Panel to recommend withdrawal of the reservation and repeal of the statutory limitation.

The preferential rights and privileges of New Territories male indigenous villagers

34 The report gives some details of the privileges and entitlements which are referred to here, though the background and justification for their continuation is sparse.⁷ Two general points may be made here: the official endorsement (and in the case of the small house policy, the continuation of the policy which was originally devised by the Government) of these preferential benefits would involve a violation of obligations under the ICCPR (in particular, article 26), to which no reservation has been made. The reservation to the CEDAW Convention thus has no effect on the Government's obligation to eliminate this discrimination, and to continue to retain this reservation in light of that fact gives a misleading impression to the public that the Government is not obliged to take such steps to eliminate the discrimination inherent in that policy.

35 Accordingly, we recommend that this reservation be withdrawn in order to bring the Government's obligations under the CEDAW Convention into line with its existing obligations under the ICCPR.

Discrimination in the field of pensions

36 The report reiterates the substance of the reservation and notes that retirement schemes are not required to avoid sex discrimination.⁸ This reservation relates to a complex area, which has traditionally involved women suffering economic disadvantage as the result of a combination of discriminatory and non-discriminatory factors. Very little detail is given in the report. In other countries detailed studies of the operation of superannuation and retirement schemes and the construction of fair and non-discriminatory retirement schemes have been carried out and led to fundamental changes. The Hong Kong report makes no mention of any detailed studies of the gender impact of existing or proposed schemes, in particular whether the structuring of the Mandatory Provident Fund will be done in a way which promotes gender equity.

37 We recommend that the Panel request the Government to carry out a thorough review of existing and proposed retirement schemes (including the Mandatory Provident Fund) to assess the extent to which women's economic contributions (including non-waged contributions) are taken into account and women's economic security are ensured under those schemes on a fair and non-discriminatory basis.

Discrimination in relation to qualifying benefits for protection against pregnancy/maternity discrimination and maternity leave

38 The Government's report simply notes the reservation and asserts that it is necessary.⁹ There is no discussion of the impact of this reservation (which is reflected in statutory provisions) or of why the Government views the imposition of such minimum limits as a violation of the Convention.

39 We recommend that the Panel request the Government to provide information about the impact of this reservation and its reasons for considering that the imposition of a minimum threshold would constitute a violation of the Convention.

Understandings

Treatment favourable to women

40 The understanding reads:

"2. The Government of the People's Republic of China understands, on behalf of the Hong Kong Special Administrative Region, the main purpose of the Convention, in the light of the definition contained in article 1, to be the reduction, in accordance with its terms, of discrimination against women, and does not therefore regard the Convention as imposing any requirement upon the Hong Kong Special Administrative Region to repeal or modify any of its existing laws, regulations, customs or practices which provide for women to be treated more favourably that men, whether temporarily or in the longer term. Undertakings by the Government of the People's Republic of China on behalf of the Hong Kong Special Administrative Region under article 4, paragraph 1, and other provisions of the Convention are to be construed accordingly."

41 The government report simply reiterates the "understanding" with no explanation of its impact or necessity.¹⁰ The understanding is either unnecessary or amounts to a reservation. It is unnecessary if it is intended to cover measures which differentiate on the basis of sex but which in fact are alleviating women's inequality in practice, because these are not prohibited by the Convention. This is because the definition of discrimination in article 1 adopts this substantive approach, and article 4(1) permits temporary special measures to be taken to address women's de facto inequality. It may, on the other hand, be intended to preserve privileges or "protective" measures "in favour of" women (e.g. past examples include no night work or underground work for women). In this case, it may amount to a violation of not only the provisions of the Convention - the perpetuation of sex-based stereotypes or the denial of real equality through the perpetuation of "protective" measures - but also of other human rights treaties binding on Hong Kong (and thus the Government is not in any event free to take these sorts of measures as that would violate other treaties).

42 This understanding is thus unnecessary, or arguably inconsistent with the Convention and Hong Kong's obligations under other human rights treaties. We recommend that it be withdrawn.

Exemption of religious organisations

43 The statement reads:

"4. The Government of the People's Republic of China understands, in the light of the definition contained in article 1, that none of its obligations under the Convention shall be treated as extending to the affairs of religious denominations or orders in the Hong Kong Special Administrative Region."

44 Once again the report simply reiterates the understanding without any indication of its impact in practice.¹¹ As a matter of international law, the obligations of the State party to eliminate discrimination against women would have to be read together with the obligation of the State to respect freedom of religion. To the extent that the statement is intended to restate this principle, it appears unnecessary. If it is intended to immunise religious denominations and orders from the prohibition of sex discrimination in all or many of their activities (and not only those required by religious doctrine and beliefs), it constitutes a reservation. Such a reservation would be much broader than the exceptions permitted under section 22 of the Sex Discrimination Ordinance, and would also be inconsistent with the obligations of Hong Kong under the ICCPR.

45 Accordingly, the "understanding" is either unnecessary, or is inconsistent with obligations under other treaties and should be withdrawn. We recommend its withdrawal. Contractual provisions

46 Once again the report simply reiterates the "understanding" and provides no explanation of the necessity or impact of the understanding.¹² It simply explains that "[t]his reservation is necessary so as to ensure that only the relevant discriminatory provision of a contract will be deemed null and void without affecting the legal integrity of the whole contract."¹³ The example is given of the possibility of rectifying a contract of employment without having to enter into a new contract.

47 It seems unlikely that the Convention would be interpreted as requiring that a contract with a discriminatory provision is required to be declared wholly invalid under domestic law, as opposed to having the offending provision excised and replaced. Article 15(3) seems to be directed at different types of instruments.¹⁴ The fact that the Government has labelled this an "understanding" suggests that it does not consider that article 15(4) requires such an outcome.

48 Section 87 of the Sex Discrimination Ordinance makes detailed provision for such a case, expressly providing that the court may exercise the power to remove or modify the provisions of a contract which is tainted by sex discrimination. There are likely to be other cases in which reliance may need to be place on the general law (for example, wills or other instruments).

49 However, in the absence of further information from government explaining why this is necessary, there is no reason to retain a statement that adds nothing to the terms of the Convention. If no sufficient justification can be put forward by the Government, we recommend its withdrawal.

Conclusion

50 This submission has touched on only a number of the issues relevant to the full and effective implementation of the Convention in Hong Kong. In our view the role of the Legislative Council is critical in persuading the Government to establish effective mechanisms for its implementation throughout the public sector, providing a justification of the many reservations and understandings limiting the Convention's applicability to Hong Kong, and ensuring that all legislation and policy measures are gender audited.

The Centre for Comparative and Public Law was established in 1995 within the Faculty of Law of The University of Hong Kong. The purposes of the Centre are to promote research and other activities in the field of public and comparative law. The Centre has organised many seminars relating to international law and human rights in Hong Kong, and has active research projects covering such topics as the application of international treaties to Hong Kong after 1 July 1997, the implementation of international human rights standards in Hong Kong law and practice; and equality and the law.

The Director of the Centre is Andrew Byrnes; the Deputy Director is Peter Feng. Researchers at the Centre include Kirstine Adams and Moana Erickson (Henry Luce Scholar visiting with the Centre in 1998-99).

The submission has been prepared by Andrew Byrnes, with the assistance of Moana Erickson, Kirstine Adams and Carole Petersen. It draws on material that has been collected through a number of Centre projects, including the Hong Kong Treaty Project (made possible by a grant from the Hong Kong Research Grants Council) and a number of research projects funded by the Committee on Research and Conference Grants of The University of Hong Kong.

Further information about the Centre and the CEDAW Convention is available on the Centre's website:

Centre for Comparative and Public Law,
Faculty of Law,
The University of Hong Kong,
Pokfulam Road.
HONG KONG

Tel: (852) 2859 2951
Fax: (852) 2559 3543
email: abyrnes@hkusua.hku.hk

The University of Hong Kong 1998

The contents of this submission may be freely reproduced, provided that acknowledgement is made of the original source.

The Government of the People's Republic of China notified the United Nations in June 1997 that the CEDAW Convention would continue to apply to Hong Kong. That notification contained the following declarations:

"1. The reservation made by the Government of the People's Republic of China to paragraph 1 of article 29 of the Convention will also apply to the Hong Kong Special Administrative Region.

2. The Government of the People's Republic of China understands, on behalf of the Hong Kong Special Administrative Region, the main purpose of the Convention, in the light of the definition contained in article 1, to be the reduction, in accordance with its terms, of discrimination against women, and does not therefore regard the Convention as imposing any requirement upon the Hong Kong Special Administrative Region to repeal or modify any of its existing laws, regulations, customs or practices which provide for women to be treated more favourably that men, whether temporarily or in the longer term. Undertakings by the Government of the People's Republic of China on behalf of the Hong Kong Special Administrative Region under article 4, paragraph 1, and other provisions of the Convention are to be construed accordingly.

3. The Government of the People's Republic of China reserves, for the Hong Kong Special Administrative Region, the right to continue to apply relevant immigration legislation governing the entry into, stay in and departure from the Hong Kong Special Administrative Region as may be deemed necessary from time to time. Accordingly, acceptance of article 15, paragraph 4, and of the other provisions of the Convention is subject to the provisions of any such legislation as regards persons not at the time having the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region.

4. The Government of the People's Republic of China understands, in the light of the definition contained in article 1, that none of its obligations under the Convention shall be treated as extending to the affairs of religious denominations or orders in the Hong Kong Special Administrative Region.

5. Laws applicable in the New Territories of the Hong Kong Special Administrative Region which enable male indigenous villagers to exercise certain rights in respect of property and which provide for rent concessions in respect of land or property held by indigenous persons or their lawful successors through the male line will continue to [be] applied.

6. The Government of the People's Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply all its legislation and the rules of pension schemes affecting retirement pensions, survivors' benefits in relation to death or retirement (including retirement on ground of redundancy), whether or not derived from a social security scheme.

This reservation will apply to any future legislation which may modify or replace such aforesaid legislation, or the rules of pension schemes, on the understanding that the terms of such legislation will be compatible with the Government of the People's Republic of China's obligations under the Convention in respect of the Hong Kong Special Administrative Region.

The Government of the People's Republic of China reserves the right for the Hong Kong Special Administrative Region to apply any non-discriminatory requirement for a qualifying period of employment for the application of the provisions contained in article 11, paragraph 2 of the Convention.

7. The Government of the People's Republic of China understands, on behalf of the Hong Kong Special Administrative Region, the intention of article 15, paragraph 3, of the Convention to be that only those terms or elements of the contract or other private instrument which are discriminatory in the sense described are to be deemed null and void, but not necessarily the contract or instrument as a whole. "

[The full text of the submission is available on the website of the Centre for Comparative and Public Law:

The Centre for Comparative and Public Law was established in 1995 within the Faculty of Law of The University of Hong Kong. The purposes of the Centre are to promote research and other activities in the field of public and comparative law. The Centre has organised many seminars relating to international law and human rights in Hong Kong, and has active research projects covering such topics as the application of international treaties to Hong Kong after 1 July 1997, the implementation of international human rights standards in Hong Kong law and practice; and equality and the law.

The Director of the Centre is Andrew Byrnes; the Deputy Director is Peter Feng. Researchers at the Centre include Kirstine Adams and Moana Erickson (Henry Luce Scholar visiting with the Centre in 1998-99).

The submission has been prepared by Andrew Byrnes, with the assistance of Moana Erickson, Kirstine Adams and Carole Petersen. It draws on material that has been collected through a number of Centre projects, including the Hong Kong Treaty Project (made possible by a grant from the Hong Kong Research Grants Council) and a number of research projects funded by the Committee on Research and Conference Grants of The University of Hong Kong.

Further information about the Centre and the CEDAW Convention is available on the Centre's website:

Centre for Comparative and Public Law,
Faculty of Law,
The University of Hong Kong,
Pokfulam Road.
HONG KONG

Tel: (852) 2859 2951
Fax: (852) 2559 3543
email: abyrnes@hkusua.hku.hk

The University of Hong Kong 1998

The contents of this submission may be freely reproduced, provided that acknowledgement is made of the original source.

Submission and publication of reports under the CEDAW Convention and other human rights treaties

1. We recommend that the Legco Panel on Home Affairs urge the Hong Kong SAR Government to:

• make publicly available reports under human rights treaties in respect of Hong Kong as soon as they have been completed and despatched to the Ministry of Foreign Affairs; and
• take up with the Ministry of Foreign Affairs the question of how to ensure that timely prepared Hong Kong reports are submitted expeditiously to the United Nations and considered within a reasonable period by the responsible committee; and
• submit every two years to the Legislative Council a report outlining the steps taken to implement the Convention in the previous two years.

Implementation by the Hong Kong SAR Government of recommendations of UN treaty bodies

2. We recommend that the Panel request the Government to provide it, prior to the hearing before the CEDAW Committee in January 1999, with a detailed analysis of:

• the recommendations made by United Nations treaty bodies in the period 1994-1997 in their concluding observations ;
• the steps the Hong Kong Government has taken to give effect to those recommendations; and
• where recommendations have not been implemented, why this has not been done.

Incorporation of gender impact assessment into government policy-making and the legislative process

3. We recommend that the Panel:

• call on the Government to establish an effective machinery in the administration for the implementation of the Convention and for ensuring that the gender impact of policies is identified and evaluated in advance and incorporated into the formulation of the policies;
• call on the Government to formulate, in close consultation with women's groups and other appropriate parties, a regional plan of action for women, as called for by the Beijing Platform for Action adopted in 1995;
• insist that all new bills presented to the Council and requests for funding be accompanied by an analysis of the gender impact of the measures (as is required for financial implications and is proposed in relation to environmental impact);
• insist that all annual reports and other government reviews include an assessment by the reporting agency of the gender impact of their work to the extent that this is appropriate; and
• request the Government to provide a breakdown to the number of women and men who serve on the various statutory advisory boards and other advisory boards and to identify the steps it adopts (or could adopt) to ensure a representative number of women serve on these bodies.

Reservations and understandings^**

4. We recommend that the Panel request the Government to prepare, by no later than 31 December 1998, a report:

• indicating whether similar reservations have been made to obligations under other conventions which are in substance the same as the obligations in the CEDAW Convention which are subject to reservations;
• explaining in detail the practical impact of these reservations and understandings and why it considers their retention to be necessary; and
• providing a credible timetable for the review and removal of those reservations and understandings whose retention cannot be justified.

* The full submission is available on the website of the Centre for Comparative and Public Law: http://www.hku.hk/ccpl/cedaw.htm.

** Recommendations in relation to individual reservations and understandings appear in the text of the full submission at paras 23-49

1. The HKSAR Initial Report is divided into two parts. Part I (the "core document") provides a general description of Hong Kong society, the legal system and framework within which the Convention is implemented. Part II contains discussion organised by articles of the Convention.

2. Report of the Committee on the Elimination of Discrimination against Women on its Thirteenth Session, UN Doc. A/49/38 (1994) at 13, subsequently incorporat-ed in the Committee's guidelines for the content of States parties' reports: Guide-lines Re-garding the Form and Con-tent of Initial Reports of States Par-ties, Committee on the Elimination of Dis-crimination against Women, UN Doc CEDAW/C/7/Rev.1 (1995).

3. A "reservation" is a statement which seeks to limit the extent of a State's obligations under a treaty, whereas the term "understanding" is used to indicate a statement of the State's interpretation of a provision which it considers to be consistent with the Convention. What is important is the substantive effect of the statement rather than what it is called. The full text of the reservations and understandings is reproduced at Annex A.

4. HKSAR Initial Report, Part II, para. 163.

5. For example, in the past there have been cases, in which the Immigration Department, when processing an application for work visas by each member of a married couple, has granted the husband an independent visa and the wife a dependent visa. It is not clear whether this was a widespread practice, or whether it still occurs.

6. International Law Association Committee on Feminism and International Law, "Women's Equality and Nationality in International Law: Preliminary Report" (prepared by Christine Chinkin, Karen Knop and Anja-Riitta Ketokoski), ILA Conference, Taipei, May 1998.

7. HKSAR Initial Report, Part II, paras 172-173.

8. HKSAR Initial Report, Part II, paras 78-79.

9. HKSAR Initial Report, Part II, para. 80.

10. HKSAR Initial Report, Part II, para. 4.

11. HKSAR Initial Report, Part II, para. 4.

12. HKSAR Initial Report, Part II, para. 162.

13. HKSAR Initial Report, Part II, para. 162.

14. See Lars Adam Rehof, Guide to the Travaux Proparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Dordrecht: Martinus Nijhoff, 1993), at 162-167.