The Hon. Leung Chun-ying
The Chief Executive
Hong Kong Special Administrative Region
Office of the Chief Executive
Dear Hon. Leung Chun-ying,
14 April 2016
I am writing to you to express alarm over an idea that you, your government and other prominent members of the Hong Kong establishment have expressed in recent months, namely that withdrawing from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) would solve the issue of the rise in torture protection claimants in Hong Kong.
Withdrawing from the UNCAT would be an unprecedented, dangerous step that would show flagrant disregard for international law. A large majority of states in the world (159) are party to the UNCAT, the number is growing every year and attempting to buck this trend would signal an unwillingness on Hong Kong’s behalf to be part of the international struggle against one of humanity’s most widely-condemned crimes. This would greatly harm Hong Kong’s reputation as an international city that respects human rights and international law.
At the same time, withdrawing from UNCAT would do little to limit Hong Kong’s international legal obligations, as the key provisions of that Convention reflect rules of customary international law binding on all nations irrespective of treaty obligations. In particular, such a withdrawal would not revoke Hong Kong’s obligation under the customary international rule of non-refoulement which prohibits states from forcibly returning an individual to another country or place where he or she can reasonably be expected to suffer a serious human rights abuse, including torture and other ill-treatment.
The Absolute Prohibition of Torture in International Law
UNCAT was adopted as a key instrument in the fight to end the scourge of torture. It sought to develop, at the international level, a capacity to deal with breaches by all states, without distinction, of their obligation to prevent torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment), and of a capacity internationally to ensure individual criminal responsibility for perpetrators of torture, including those with command or superior responsibility. UNCAT sets out a series of measures regarding prevention, investigation, bringing those responsible to justice both domestically and across borders, and affording reparation to victims.
As noted, withdrawing from UNCAT would have limited legal consequences. At the same time, it would have deleterious consequences on a range of issues that affect everyone in Hong Kong and Hong Kong institutions, as the territory would no longer benefit from the detailed, expert advice
provided by the Committee against Torture. In the concluding observations issued in 2015 after reviewing the Hong Kong government’s implementation of its obligation under the treaty, the Committee Against Torture’s recommendations to the Hong Kong Special Administrative Region (HKSAR) government covered issues such as the need to establish an independent mechanism to receive and investigate complaints against officials, to ensure fundamental legal safeguards for people in detention, and to conduct independent investigations regarding allegations of excessive use of force when policing demonstrations.
Thus withdrawing from UNCAT would have a negative practical impact on the protection of everyone in Hong Kong from torture and other ill-treatment.
Non-refoulement as a rule of customary international law
The prohibition against torture has been designated in a range of international and regional treaties as a non-derogable right – a right which must never be suspended, even in time of public emergency. Non-refoulement which is included in Article 3 of UNCAT, like the prohibition against torture, is part of customary international law and applicable to all states, regardless of whether they are parties to UNCAT or any other treaty. As such, even if Hong Kong were to pull out of UNCAT, the Hong Kong government would still be required to observe the prohibition on refoulement.
The Hong Kong Basic Law and the Bill of Rights Ordinance also include the absolute prohibition against torture and other ill-treatment. In addition the right to non-refoulement has been recognized as a part of the prohibition against torture by the Hong Kong Court of Final Appeal. According to the judgment in Ubamaka v Secretary for Security in 2012, the Court found that under Article 3 of the Bill of Rights Ordinance, the Hong Kong Government is bound to assess non-refoulement protection claims, prior to exercising powers of removal of a person.
Another suggestion by some lawmakers in Hong Kong of new immigration detention for asylum and torture claimants is not in line with international law and standards. International standards applicable to irregular migrants and asylum-seekers contain a strong presumption against detention and place clear restraints on its use. With respect to asylum-seekers, the UNHCR has stated that their detention is “inherently undesirable.”
For immigration detention to be justifiable under international law, certain conditions must be met. International law requires the State to demonstrate in each individual case that detention is necessary and proportionate to the objective to be achieved, which must be one of three legitimate objectives:
- preventing absconding
- verifying identity
- ensuring compliance with a deportation order.
Everyone, including all migrants and asylum-seekers, has the right to liberty, including freedom from arbitrary arrest and detention. Accordingly Amnesty International opposes the routine or automatic use of detention for the purposes of immigration control and urges the HKSAR government not to pursue any such proposals.
Amnesty International urges the HKSAR government to uphold its obligations to protect individuals from torture and other ill-treatment generally, and non-refoulement specifically by reiterating its intention to adhere to UNCAT and to disregard any calls to withdraw from the treaty.
Conversely, the HKSAR should address the current problems with the unified screening mechanism head on and should implement the recommendations on the claims process identified by the UN Committee against Torture as first steps.
Hong Kong Section Director
 Committee against Torture, Concluding observations on the fifth periodic report of China with respect to Hong Kong, China, UN Doc. CAT/C/CHN-HKG/CO/5 (2016), paras. 9, 13, 15.
 UNHCR, The Principle of Non-refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 Bvr 1953/93, 2 BvR 1954/93; (1994); UNHCR, Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, (2007), para. 15. See also, UNHCR EXCom, Conclusion No. 6 (XXVIII) Non-refoulement, (1977), para. (a); A Duffy, “Expulsion to Face Torture? Non-Refoulement in International Law,” 20(3) Int J Refugee Law, (2008).
 Ubamaka Edward Wilson v Secretary for. Security & Anor. FACV No. 15 of 2011 (21 December 2012), for instance paras. 114-115.
 Amnesty International, Irregular Migrants and Asylum-Seekers: Alternatives to immigration detention, AI Index: POL 33/001/2009, p.7; Committee on the Elimination of Racial Discrimination concluding observations: Bahamas, UN Doc. CERD/C/64/CO/1, (2004), paras. 34, 35 and 37; Human Rights Committee, Concluding Observations: Australia, UN Doc. A/55/40 vol. I, (2000), paras. 526 and 527; UNHCR/OHCHR, Summary Conclusions from Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons, (2011), para. 3; Guideline 4(1) of the UNHCR Detention Guidelines (above).