1. INTRODUCTION
Beneath the successful veneer of the Hong Kong Special Administrative Region (HKSAR), an underbelly within Asia’s world city exists. Since the 1950s, an inhumane type of housing known locally as cage-homes with conditions unimaginable to an international audience has supplanted itself as the only option for citizens reliant on government assistance.Footnote 1 Cage-homes are inhabited by a highly marginalized group estimated to be as many as 200,000 in number.Footnote 2 Cage-homes encompass cubicle-flats, bed-space apartments, roof-top slums, and minuscule subdivided units. By any description, though, these are not homes at all. They are the embodiment of squalor—cramped, dank, dimly lit dwellings averaging 15 square feet in size.
With Hong Kong’s growing wealth disparity,Footnote 3 rising property prices,Footnote 4 and a longstanding political ideology demonizing the poor, these subalterns are left to eke out lives in cage-like structures that permeate the landscape. Many arrived in their youth from mainland China in search of greater prosperity but found themselves socially immobile and “reified as a class of helpless and hopeless wretches.”Footnote 5 Despite their voiceless presence, cage tenants present a stark human rights challenge to a government fully cognisant that such dwellings “cast a dark shadow over [this] thriving city.”Footnote 6
In light of governmental inaction on the use of cage-homes, the phenomenon has attracted international scrutiny and condemnation. The Committee on Economic, Social and Cultural Rights (CESCR), the body entrusted with monitoring compliance of the International Covenant on Economic, Social and Cultural Rights (ICESCR), has addressed a number of aspects of the right to housing. In 2001, the committee criticized Hong Kong for a “large number of older persons [who] continue to live in poverty without effective access to social services”Footnote 7 stating it was “deeply concerned that the right to housing of many people in Hong Kong remains unfulfilled.” Specifically, it described bed-space apartments and cage-homes as “an affront to human dignity” such structures “constitut[ing] a grave risk to the life and health of their inhabitants.”Footnote 8 The committee recommended that the HKSAR “give special attention to the impact of current policies … on cage homes,”Footnote 9 further imploring “that Comprehensive Social Security Assistance levels permit recipients a reasonable standard of living consistent with articles 9 and 11 of the Covenant.”Footnote 10 More than a decade later, these concerns have largely been ignored, as highlighted by the CESCR’s 2014 reportFootnote 11 in which the government’s efforts to provide adequate housing were found wanting.
Adequate housing is recognized as a fundamental human right in the Universal Declaration of Human Rights (UDHR) which acts “to guarantee minimum housing provision for poor and deprived persons, based on respect for human dignity.”Footnote 12 The right has come into conflict with “financial globalization, migration, privatization of social housing and marketization of housing as a commodity.”Footnote 13 This is particularly evident in Hong Kong with the government’s relationship with the financial community being one of over-reliance on private-sector solutions to public sector needs—an ideology which has proved ineffective, as echoed by the UN Special Rapporteur in 2008:
The belief that markets will provide housing for all has failed. The current crises is a stark reminder of this reality. A home is not a commodity—four walls and a roof. It is a place to live in security, peace and dignity, and a right for every human being.Footnote 14
The committee reiterated the failings of Hong Kong’s efforts in this regard. On the issue of “adequate housing” under Article 11 of the ICESCR, the committee made it clear that “a high percentage of the population [is] living in informal settlements, industrial buildings, cage-homes, and bed-space apartments, which do not have adequate services and utilities.”Footnote 15 Such pronouncements stand in contrast to governmental rhetoric on this issue. In his 2015 policy address, the Chief Executive explained that helping the “underprivileged” was his government’s priority and, to that end, it would build upon the “groundwork laid to provide adequate housing.”Footnote 16 And yet Hong Kong people continue to suffer from an intractable housing crisis. In spite of the “economic miracle” hailed, there has been a steady erosion of living standards affecting those at the lowest levels of society, who are plagued by dangerous and squalid accommodation.Footnote 17
In the face of official tolerance of these abject conditions, this article seeks to explore the human rights law implications that arise from the alarming plight of cage tenants in light of the developing body of human rights jurisprudence on the right to adequate housing. The issue can be simply stated: outmoded government policy on housing provision is constructively forcing lower-income groups to subsist in inhumane conditions. Decade-long waiting lists for public housing leave no other alternative but to survive on government rent subsidies. Where subsidy is provided for private housing, recipients can only afford cage-cubicles or bed-space apartments, with barely enough money remaining to acquire other basic necessities.Footnote 18 This article will address the contentious issue of whether inadequate housing welfare benefits can generate obligations upon the government under human rights law to assist those dependent upon it.
Two important international human rights treaties in this regard are the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, protecting a range of economic, social, cultural rights (ESCR) and civil and political rights (CPR) of relevance to the discussion here. While the rights enshrined in the ICESCR are expressed in general terms (an “adequate” standard of living), it is notable that the ICCPR contains no explicit right to housing.Footnote 19 In relation to the former, the right to an adequate standard of living which encompasses housing conditions requires the government to take steps by all appropriate means and to the maximum of its available resources to achieve that right.Footnote 20
Both treaties were extended to Hong Kong upon the UK’s ratification in 1976.Footnote 21 Following the Handover, these instruments were referenced in Article 39 of the Hong Kong Basic LawFootnote 22—China’s constitutional blueprint for the HKSAR—to ensure continuity in human rights protection following Hong Kong’s return to China on 1 July 1997.Footnote 23 The extent to which this specific human rights framework is able to confer rights in the realm of housing welfare in Hong Kong remains controversial.
By looking at the implementation of the ICESCR and ICCPR in Hong Kong and the treaties’ capacity to improve the cage-home problem, this article will strengthen a scholarly claim made elsewhere that deriving support for basic rights cuts across the two covenants.Footnote 24 Unlike the ICCPR, however, the upholding of rights under the ICESCR has been weakened by an uncertain legal status in Hong Kong. This is despite Article 39 of the Basic Law, which provides that the ICCPR and the ICESCR, as applied to Hong Kong, remain in force and shall be implemented through the laws of Hong Kong.Footnote 25 While the ICCPR was incorporated into local legislation through the Hong Kong Bill of Rights Ordinance (Cap 383) (HKBORO) in 1991, the ICESCR was not comprehensively incorporated into domestic Hong Kong law, which on a conventional dualist understanding only has legal effects on the international plane.Footnote 26 In light of this, the manner in which domestic courts in Hong Kong are able to give effect to its provisions is therefore a matter of interest. Equally, the role that the ICCPR can play within Hong Kong warrants attention given the international and domestic jurisprudential trend emerging whereby ESCR rights are enforced through indirect means of CPR.Footnote 27
Accordingly, this article comprises five parts, including this introduction. Part 2 provides a background to cage-housing and relevant government policy in Hong Kong. This will establish the context in which to assess the various legal arguments made here. Parts 3 and 4 will consider the ICESCR and ICCPR, respectively, examining the way in which they might give practical meaning to the right to adequate housing. First, there will be analysis of the right to an adequate standard of living under the ICESCR. In particular, the article will look to the “minimum core” of the right and ask whether this concept assists in its realization in Hong Kong. Part 4 will provide an assessment as to whether government policy violates its obligations to respect and ensure the right not to be subject to inhuman or degrading treatment (IDT) under Article 3 of the HKBORO, the local adaptation of Article 7 of the ICCPR. On this argument, the article will scrutinize the reasoning of those decisions—international and domestic—pertaining to IDT in the context of upholding socioeconomic rights, specifically housing welfare benefits. It will ascertain whether the alleged treatment meets the minimum threshold of severity required to violate the prohibition. Even if Article 3 is found to be engaged, the hurdle remains as to whether denial of adequate welfare support could reasonably be said to amount to “treatment” that required positive action to be taken on the part of the authorities. Part 5 will provide a conclusion.
2. CAGE-HOMES: UNFIT FOR PURPOSE
This section will provide an overview of the welfare policy applicable in Hong Kong for housing assistance. It will then offer an account of the cage-housing typically occupied by welfare recipients before outlining how a governmental anti-welfare dogma has contributed to the difficulties cage tenants face.
2.1 Housing Welfare Policy
Despite high demand for government public housing, a shortfall exists and is worsening.Footnote 28 The average waiting time for allocation of public housing is 3 years, but periods far in excess of this have been reported.Footnote 29 The government facilitates those unable to secure public housing through its monthly rent subsidy (MRS) for private accommodation. Comprehensive Social Security Assistance (CSSA), operated through the Social Welfare Department, acts as a “safety net” for those who cannot support themselves financially, providing housing assistance by bringing income up to a prescribed level to meet basic needs.Footnote 30 If a person is eligible, the maximum level of rent allowance for a single person is HK$1,640 (c.US$209) per month.Footnote 31 The crux of the problem is that the MRS does not match the actual private rental cost for adequate accommodation.Footnote 32
On this point, the CESCR has voiced concern that CSSA “may not provide adequate protection to low-income families and persons with disabilities.”Footnote 33 In view of high-rising rental prices, CSSA applicants receiving MRS absorb these increases by sacrificing living standards, a worry exacerbated by some of the highest living costs in the world.Footnote 34 Subsidies have not risen in line with these rent increasesFootnote 35 and were in fact cut in 2003 (from HK$1,500 to HK$1,230) then frozen at that level for close to a decade.Footnote 36 Subsequent increases have been negligible, failing to reflect market realities.Footnote 37 Where soaring rental prices force CSSA recipients out of the regular housing market, many resign themselves to bed-space apartments and caged cubicles—living environments that give rise to egregious human rights violations.
2.2 Portrait of a Cage-Home
Material conditions in cage-homes are unassailably bleak.Footnote 38 Often constructed using wire mesh and wooden planks, these cubicles comprise stacked units with barely enough space for a mattress and ceilings too low to stand. Cage tenants share quarters with large numbers of strangers (20 or more in a 450-square-foot space) and innumerable other vermin. Sleeping areas are often infested with bedbugs. The smallest among them are a mere 10 square feet in size, vastly below the minimum of 60 square feet set by the Housing Authority for public housing.Footnote 39 Each cubicle is accessed via a ladder and sometimes a sliding door, resembling “a concentration camp.”Footnote 40 Narrow passageways terminate with a poorly sanitized communal toilet and washing facilities.
The holding room may have a single window but ventilation is poor. High temperatures inside inevitably make sleep difficult. Overcrowding “make[s] the air stagnant with odors; urine from the toilet, leftover food from the kitchen, and sweat and smoke from the tenants themselves.”Footnote 41 There is no separation based on age or sex. Occupants sign their privacy away at the door—but can expect no landlord obligations in return.
To compound matters, a disadvantaged cross section of society lives cheek by jowl: residents include the working poor, the unemployed, new immigrants, people suffering from mental illness, ex-offenders, and other marginalized groups. Needless to say, tensions arise with denizens sharing such cramped living spaces. A dark irony is cage tenants pay—per square footage—more for their abysmal accommodation than Hong Kong’s affluent housed in luxury apartments.Footnote 42 A 15-square-foot bunk such as that found in structures described above typically costs in excess of HK$1,500.Footnote 43 Despite their meagre space, rent on cage-homes has seen price rises of approximately 20% in the past 5 years.Footnote 44 When average rents rise, the government does not adjust its rental subsidy accordingly.
2.3 Hong Kong’s Housing Crisis
Lanse Minkler and Shawna SweeneyFootnote 45 argue that a government’s ability to meet basic ESCR and CPR is a product of its available resources, itself a product of its institutional constraints and national income—as well as factors such as a country’s legal origins and the impact of globalization.Footnote 46 They suggest that a government’s willingness to meet such basic rights is a product of its responsiveness to public demands.Footnote 47 Ability does not equal willingness, evidenced by many poorer countries being better at realizing basic needs than more affluent ones.Footnote 48
Hong Kong is a case in point. While less than a third of its territory is urbanized, with among the world’s highest population density,Footnote 49 Hong Kong’s housing crisis is not simply a manifestation of its geographical constraints. The government has long limited the supply of land for development—a policy benefitting a coterie of private housing developers (who control prices through the economics of supply and demand)Footnote 50 at the cost of better housing conditions for the poor. This relationship with the private sector stems from a governmental ideology sceptical of welfare.
The key study in this regard is that of Leo GoodstadtFootnote 51 from which the following account is primarily derived. Goodstadt argues that a major consequence of Hong Kong’s governmental obsession with policies rooted in economic vulnerability of the territory and wealth creation is a decline in housing stock capable of meeting the needs of its citizens.Footnote 52 He found that those from lower socioeconomic sections of society are at the mercy of Hong Kong’s housing lineage—one that led to an official stance that private-sector accommodation, however injurious to health, has been the appropriate market solution for the “problem” of low-income individuals seeking housing.
Initially, Hong Kong’s first Chief Executive, Chee-hwa Tung (Reference Tung1997–2005), began his tenure with the proclamation that housing was “the number one priority.”Footnote 53 But Tung’s ambition to build 85,000 new homes a year and lift the ratio of home-owners to 70% of the population was poorly executed, with the result that the “public housing programme was virtually abandoned in 2001.”Footnote 54 Goodstadt pinpoints Tung’s “calamitous decision” to hand over responsibility for the supply of housing to the private sector as a major cause. This transference of responsibility for housing development cut short “the government’s traditional commitment to ensuring an adequate supply of public housing, both for rent and sale, to families which could not afford to look for homes in the private sector.”Footnote 55 Tung came to symbolize a belief that restriction in social expenditure was necessary because welfare spending results in lower business profits and slower economic growth.Footnote 56 Remarkably, Tung’s position altered from one in support of substantial housing reform to one where “those in need could rescue themselves from poverty.”Footnote 57
The second Chief Executive, Donald Tsang (2005–12) inculcated this volte-face, resisting the call to improve the lot of the poor on the grounds that closing the gap would do more harm than good,Footnote 58 and maintaining the position that “[t]he government must never try to assist the poor using its own resources for this is doomed to failure.”Footnote 59 Demonizing the “poor” thus remained a thread throughout Tsang’s term, which he characterized as the “price to be paid” for prosperity.Footnote 60 Consequently, deficiencies in housing became irrevocable; structures became dilapidated and homes slums, as identified by a 2006 UN report noting that “slum dwellers” had grown at an annual growth rate of 150% more than the overall average for the world’s developed regions.Footnote 61
Building public disapproval of social welfare improvements with threats to Hong Kong’s low-tax regimeFootnote 62 enabled a culture of prejudice against the poor. This resistance to welfare expenditure escalated to a point at which those “who turned to the government for assistance were defamed without justification, especially those households which could only survive by applying for CSSA benefits.”Footnote 63
In light of this governmental and public antipathy, the retrogressive trajectory that housing policy has taken is unsurprising. In 2002, the government withdrew from the housing market (except in developing homes for low-income groups). The rationale was to reduce its “intervention in the housing area, and to restore the proper role of the private residential property market.”Footnote 64 This move was to prove pernicious for lower-income sections of society, resulting in a long-term drought of housing stock.Footnote 65
In 2011, when political pressure led to re-entry of the government into the housing market, it could only do so on a reduced scale, having decimated its professional capacity within the Housing Department.Footnote 66 Consequently, the private sector remains the only option for the majority of lower-income groups; private-sector owners in turn have exploited this demand with a growing trend since 2001 to subdivide and rent out premises in older buildings with complete disregard for the health and safety of tenants. Remarkably, in spite of evident risks, the government has “felt unable to rigorously enforce the legislation” which might better protect such tenants.Footnote 67 One reason for this is that cage tenants occupy a nebulous legal space with no settled definition of a “subdivided” cubicle. Instead, the government disquietingly concedes such structures are “urban time bombs” which threaten further “injuries and fatalities.”Footnote 68
Incumbent Chief Executive, Chun-ying Leung, has since sought to “revive the housing vision” of Tung with renewed focus on “the living conditions of the lower strata of society.”Footnote 69 As a response to growing community concern over the failure to reduce poverty in Hong Kong, Leung introduced Hong Kong’s first poverty line.Footnote 70 A key difficulty remains: a housing planning infrastructure left barren by government’s harmful decision to abandon its programme in 2002 with the government admitting that work needed to resurrect its various planning structures would delay an increase in annual output until 2018 at “the earliest.”Footnote 71
Consequently, the housing shortage inflates rental prices substantially and cubicle-apartments have become the reluctant avenue for hundreds of thousands of people. Far from providing an effective solution to such “dreadful standards of accommodation,” the government has had to acknowledge the sobering fact that “dilapidated, over-crowded and neglected” slum-like structures are set to elevate significantly by 2030.Footnote 72
3. A FRAMEWORK FOR THE RIGHT TO ADEQUATE HOUSING
This section will analyze the scope, content, and meaning of the right to “adequate housing” as interpreted in the ICESCR, and how that might apply to Hong Kong’s domestic law. Particular focus will be given here to Article 11 of the ICESCR. Space precludes discussion of the various dimensions of administrative law that could be considered.Footnote 73
3.1 Article 36 of the Basic Law
Hong Kong residents’ broad constitutional right to social welfare is found in Article 36 of the Basic Law.Footnote 74 This provision must be read alongside Article 145Footnote 75 through which the government controls social welfare matters and the right to develop its own laws and policies.Footnote 76
Although Article 36 (and 145) of the Basic Law is the constitutional guarantee of Article 9 of the ICESCR,Footnote 77 the latter provides a far more nuanced right to social welfare. By comparison, Article 36 does not spell out particulars as to specific welfare benefits or eligibility.Footnote 78 Two interrelated questions flow from this: first, in what way does the ICESCR build upon Article 36 to the benefit of cage tenants? Second, even if the covenant can provide a more nuanced right to adequate housing, can it be enforced through the Hong Kong courts?
3.2 Article 11 of the ICESCR
In comparing the protections afforded by the ICESCR with the ICCPR, it is first important to note the textual differences that exist: the ICCPR’s formulation so as to provide for immediately attainable guarantees (“everyone has the right to”) can be contrasted with Article 2 of the ICESCR, which is more exhortatory in tone, framing the provisions as standard-setting directives to be progressively realized (“the State parties to the present Covenant undertake to ensure”).Footnote 79 In spite of the somewhat indefinite reference to “progressive realisation,” not all rights are incapable of immediate enforcement.Footnote 80 The CESCR has noted the ICESCR imposes upon governments a “minimum core” of obligations which demand immediate compliance.Footnote 81
3.2.1 A Minimum Core of Adequate Housing
Article 11 of the ICESCR sets out the minimum core or minimum standards of living through which state violations can be identified. In this sense, a greater scope of social welfare protection is offered by the ICESCR as compared with Article 36 of the Basic Law. In particular, the CESCR has provided interpretive guidance on what constitutes the content of the right under Article 11 in terms of adequate housing,Footnote 82 distilling the minimum core into a number of dimensions of which the following are most relevant to cage-homesFootnote 83: (1) Legal security of tenure; (2) Availability of services, materials, facilities and infrastructure; (3) Affordability; (4) Habitability; (5) Accessibility. Each element contains procedures, policies, and regulations that states should implement in order to fulfil their obligations under the covenant.Footnote 84 The minimum core approach to obligations thus allows courts to pronounce on the substantive minimum content of the socioeconomic right engaged, which in turn requires the government to give effect to it or, where it departs from doing so, provide sufficient justification.Footnote 85
Extensive criticism of the minimum core concept points to the difficulty of giving normative content to the definition of adequate housing which can impede its being an enforceable indicator of rights violations.Footnote 86 As Hohmann points out, the committee does not “consider the concept of adequacy in any depth,” which is potentially problematic in that adequacy may not be fulfilled simply by meeting the provision of a minimum core within each element.Footnote 87 This presents less of an obstacle in the situation of cage tenants, where violations are readily identifiable and government policy plainly fails to attain the minimum core, let alone a potentially higher threshold of adequacy that Hohmann alludes to.
First, as cage tenants can be evicted at any moment,Footnote 88 it is important to note that the CESCR requires the taking of “immediate measures” to confer legal security.Footnote 89 This encompasses private rental accommodation and informal settlements. Regardless of the type of tenure that exists, “security” in this context includes guarantees of legal protection against forced eviction—a problem associated with landlords who rent out cage-cubicles.Footnote 90 Second, the material conditions outlined above demonstrate that cage-cubicles do not meet the threshold for availability of services, materials, facilities, and infrastructure, which includes adequate sanitation, ventilation, and lighting. Arguably, tenants are also subject to “arbitrary or unlawful” interference with privacy. Footnote 91 Third, with respect to affordability, cage tenants’ financial costs associated with housing are at such a level that the “attainment and satisfaction of other basic needs” are “threatened or compromised.”Footnote 92 The rent subsidy under CSSA is woefully insufficient in that it generally limits housing options to cage-cubicles. Fourth, living conditions fall far short of the standard for habitability. For living spaces to be habitable, inhabitants should live with adequate space and be protected against the cold (or heat), damp, and other threats to health and structural hazards.Footnote 93 Fifth, the CESCR specifically addresses accessibility to disadvantaged groups, including the vulnerable and mentally ill.Footnote 94 The inadequacy of financial support to provide for disadvantaged groups is another indicia of violation under Article 11. It is therefore evident from the CESCR’s interpretive guidance that the minimum core is focused on the vulnerable in society who face conditions of destitution—a group within which cage tenants fall squarely.Footnote 95
It is further instructive that the CESCR has explained a national poverty line provides an indicium of what constitutes a minimum essential level within a state to enjoy an adequate standard of living.Footnote 96 Indeed, the Hong Kong government rationalized its recent introduction of a poverty line on the basis that it could identify groups who are at risk owing to their socioeconomic circumstances and in need of “targeted assistance.”Footnote 97 By harnessing its newly drawn poverty line, the government can ascertain the extent to which the minimum content of ICESCR rights is met with respect to the cage tenant population.Footnote 98 In this regard, the government must confront damning empirical data that deprivation is at its highest “by a considerable margin” among CSSA recipients.Footnote 99 Such data show that this group is beset by a “mean level of deprivation [which] is five times higher on average” than non-CSSA recipients.
3.2.2 Domestic Application of the Right to Adequate Housing
Whilst a promising case can be made that the obligations of the government to ensure the right to housing and that it is not violated by private actorsFootnote 100 are not complied with in the case of cage tenants, a key issue remains as to the application of this treaty in domestic law; without local enforceability, there is no effective legal mechanism to compel the authorities to respect the rights of cage tenants and give meaning to the minimum core approach.
Although the covenant would appear entrenched by Article 39 of the Basic Law which states that the ICESCR (and ICCPR) “as applied to Hong Kong shall remain in force and shall be implemented through the laws” of the region, the actual effect of this provision is that both treaties require domestic implementation in order to be enforceable. This corresponds with a common-law dualist system such as that in Hong Kong.Footnote 101 Article 39 therefore acts as a guarantee that “legislation that serves to implement these instruments” enjoys a constitutional status.Footnote 102 Unlike the ICCPR, however, which is domestically incorporated by HKBORO, there is no single law that directly implements the ICESCR.
Some Hong Kong courts have propagated the mischaracterization that the ICESCR is “aspirational” and “promotional”Footnote 103 in nature, cementing a judicial stance that it does not create “any obligations.”Footnote 104 This perception stems from the textual difference, highlighted above, between the two covenants. Unlike the ICCPR, which provides for concrete immediately attainable guarantees, the ICESCR is hindered by more equivocal standard-setting directives to be progressively realized.Footnote 105
Whilst it is reassuring that the government has subsequently “note[d] the Committee’s observations that the Covenant is not merely ‘promotional’ or ‘aspirational,’,” its stance that the ICESCR “creates binding obligations at the international level”Footnote 106 would suggest that the government does not consider that the specific provisions of the ICESCR are directly enforceable under domestic law. As recently as 2014, therefore, the CESCR noted “with regret” that the ICESCR’s “provisions are not directly applicable by courts and tribunals.”Footnote 107 It has consequently been said that “this undermines the status of [the] ICESCR,” rendering its protection “inadequate and incoherent.”Footnote 108
3.2.3 Indirect Incorporation: Sector-Specific Legislation
An alternative approach to incorporation could be considered in order that socioeconomic rights become part of the constitutional discourse in Hong Kong. The approach suggested here, although novel, finds support with recent jurisprudential developments. The starting point is the government’s stated position on incorporation of the ICESCR which requires emphasis. A chief reason it gave for not enacting an equivalent law to the HKBORO (which incorporates the ICCPR by replicating large sections of it) for the ICESCR was that it is already “incorporated into our domestic law through several Articles of the Basic Law… and through provisions in over 50 Ordinances”Footnote 109 which “more effectively protect Covenant rights than would the mere re-iteration in domestic law of the Covenant provisions themselves.”Footnote 110 In other words, the government has contended that rights contained within the ICESCR are more adequately protected by the passage of sector-specific legislation, whereby the scope of those rights is subject to legislation. This position corresponds with the trigger mechanism of Article 39(1) of the Basic Law which provides that the ICESCR “shall be implemented through the laws of the Hong Kong Special Administrative Region.” Pursuant to Article 39, incorporation through the mechanism can either take a direct or indirect form: directly through comprehensive implementation of a treaty into one legislative act (e.g. the HKBORO) or indirectly through sector-specific legislation, as described above.
Given this position, a principled line of argument for the courts to adopt in future is that the ICESCR can be used in sector-specific legislation that the government claims incorporate the treaty in Hong Kong’s domestic law. While this is an underexplored point in the literature,Footnote 111 this approach might circumvent judicial difficulties that have arisen from the lack of incorporation in one single law. Indeed, the committee does not mandate passing a single piece of legislation to implement the ICESCR (though it supports enactment of the covenant’s provisions while recognizing that other legislative and other actions are necessary to implement it fully). In General Comment No. 9, States Parties were said to have the discretion to decide the appropriate means to give effect to the rights contained in the ICESCR.Footnote 112
There are growing judicial signals that indirect incorporation is a valid approach to constitutional interpretation. Observations from the Court of Final Appeal (CFA) in Ho Choi Wan v. Hong Kong Housing Authority Footnote 113 indicate that the principle of affordable housing in the Housing Ordinance (Cap 283) reflects the right to an adequate standard of living, including housing, contained in Article 11 of the ICESCR.Footnote 114 Despite rights-friendly leanings here, the decision came with the caveat that the ICESCR had not been taken into account, although it was relevant.Footnote 115
In GA v. Director of Immigration,Footnote 116 Ma C.J. was more explicit: “... there can be incorporation of individual provisions of the Covenant by different statutes.”Footnote 117 This reinforced earlier recognition by the Court of Appeal (CA) of arguments based on sector-specific provisions in MA v. Director of Immigration.Footnote 118 Accordingly, there is good authority to support the contention that sector-specific legislation incorporates and gives constitutional effect (see below) to certain rights contained in the ICESCR.Footnote 119
Most recently, in Kong Yunming v. The Director of Social Welfare, Footnote 120 the CFA relied upon the report submitted to the CESCR by the government to highlight its claim that some of the ICESCR articles have been implemented through different domestic laws, thereby bolstering the argument that the ICESCR is incorporated into Hong Kong’s domestic legal order.Footnote 121
The shift in the approach of the courts in this regard is one worth noting. Until recently, the Hong Kong judiciary showed little interest in communications between government and the CESCR.Footnote 122 Indeed, one reason precluding the development of justiciable socioeconomic rights in Hong Kong has been the very limited reference to the ICESCR in decided cases.Footnote 123 Where reference has been made to the covenant, it has largely been in the sensitive context of immigration matters, involving vulnerable personsFootnote 124 at the periphery of destitution.
Perhaps for this reason, Hong Kong courts have been reluctant to engage with the possibility that the ICESCR is able to provide a source of enforceable rights in other contexts or, failing that, guidance when interpreting domestic laws. While it is true that asylum seekers face heightened levels of risk in their country of origin, it is not the case that such risks are present in the host territory. As such, the focus has been on addressing the competing problem of vulnerability and destitution faced by asylum claimants. It is submitted that cage tenants represent similar levels of vulnerability either in terms of their physical and mental health needs, or in light of their inability to maintain economic self-dependence.Footnote 125 Without access to the CSSA rent subsidy, cage tenants face an equivalent risk of destitution that places them in need of “targeted assistance.”
As underscored by the CFA in Kong Yunming, CSSA’s purpose “aims to provide a welfare benefit addressing basic, ‘safety net’ needs.”Footnote 126 The importance of the courts’ dictum here cannot be understated. Prior to the CFA’s pronouncements in Kong Yunming, there was a tendency for the court to adjudicate on socioeconomic issues using the framework of CPR: litigation invariably focused on the content and scope of the right to equality in the attainment of social welfare entitlements. Kong Yunming indicates a shift away from this more traditional approach, by giving meaning to social welfare rights under the Basic Law. Article 36 of the Basic Law recognizes the right to social welfare.Footnote 127 Jurisprudence prior to Kong Yunming essentially treated this right as non-justiciable, its having to be read in line with general government discretions to “develop and improve” the system, which could go either way—progressively or retrogressively. However, by delineating CSSA as a form of welfare benefit which addresses “safety net” needs, the CFA has demonstrated its “preference for establishing a core content for the right [to social welfare].”Footnote 128 By acknowledging that the protections afforded by Article 36 contain at a minimum the provision of “basic needs” of residents, this decision paves the way for future contestation as to the precise scope of welfare and what amounts to “basic needs.” Indeed, in ruling that the constitutional protection for the right to social welfare provided by Article 36 is imbued with a minimum core content, Albert Chen has argued that the difficulties of justiciability ordinarily associated with enforcing socioeconomic rights under the ICESCR are circumventedFootnote 129—an outcome that was “perhaps an unintended consequence.”Footnote 130 This is germaine to categories of persons like cage tenants whose essential allegation of rights violations focuses on the failure of government to meet its minimum core obligations with respect to the right to adequate housing. Following Kong Yunming (CFA), such claims appear to be on a stronger (constitutional) footing.
Against this, the Hong Kong government has recourse to the leading judgment in Kong Yunming (CFA), where Riberio P.J. stated that the constitutional right to social welfare was not absolute. Limitations to Article 36 are therefore possible although they must be justified on a proportionality analysis.Footnote 131 He further held that this was not a “fundamental right”Footnote 132 but one that involves allocation of financial resources under the auspices of socioeconomic policies.Footnote 133 As such, a “wide margin of discretion” would be afforded to government when the court conducted its constitutional review and proportionality scrutiny. The only circumstances in which such policies would be struck down would be those where the act of government was “manifestly without reasonable foundation,” “manifestly unreasonable,” or “wholly irrational.”Footnote 134
While this may appear at first blush to have a restrictive effect on the development of socioeconomic rights protection in the territory, two important ramifications flow from Kong Yunming (CFA). First, as a result of this landmark decision, the Hong Kong courts have signalled that justifications provided by the government on public policy and resource allocation to restrict such rights are more open to scrutiny. The corollary of this is that the government will be expected to undertake its constitutional duty to protect the right to social welfare (a right that naturally encompasses claims to adequate housing) with more seriousness.
Second, while it is correct that wide discretion is given to the state when devising its socioeconomic policies, and that arguments based on proportionality will be open to government to argue, the growing influence of the ICESCR and treaty-compliant manner in which Article 36 of the Basic Law is interpreted will inevitably lead to courts’ being confronted with a need to faithfully give effect to provisions of the covenant. In particular, the approach of restrictions on ICESCR rights, under Article 4 of the ICESCR, is relevant to understanding minimum core obligations. The provision states that limitations must be “compatible with the nature of these rights.” The Limburg Principles on the Implementation of the ICESCR (Limburg Principles) indicate that this element “requires that a limitation shall not be interpreted or applied so as to jeopardize the essence of the right concerned.”Footnote 135 In other words, “non-derogable” components of the ICESCR exist which “rule out certain extreme restrictions.”Footnote 136 These components, which represent minimum core rights within the ICESCR, cannot be restricted.Footnote 137 From this, it can be argued that limitations on essential care or basic needs are clearly precluded under the covenant. This position is reinforced by the Limburg Principles interpretation of Article 4 as a provision which “was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person.”Footnote 138
Equally, limitations grounded in proportionality arguments face difficulties where the limitation that is under examination relates to a minimum core obligation under the ICESCR. The minimum core already corresponds to such a low baseline level as to make any governmental claim that the “public interest” should necessitate the extirpation of survival rights unconvincing.Footnote 139
Reading Article 36 alongside Article 145 of the Basic Law, the CFA in Kong Yunming further recognized that “the intention of the Basic Law must be taken to be that such administrative system … is to be treated as a system providing ‘social welfare in accordance with law’.”Footnote 140 It provides the “framework for identifying a constitutionally protected right to social welfare” and modifies its scope accordingly through a “crystallised set of accessible and predictable eligibility rules.”Footnote 141 Reviewed and evaluated by the Legislative Council (LegCo) (Hong Kong’s legislatureFootnote 142), it follows that CSSA becomes a legal manifestation of the right to social welfare, constitutionally protected by Articles 36 and 145 of the Basic Law (in tandem with Articles 9 and 11 of the ICESCR, via the trigger mechanism of Article 39 of the Basic Law).
It is argued therefore that Article 11 is indirectly incorporated and given constitutional effect (at the very least, by providing a minimum core content to the housing dimension of social welfare) through the CSSA. Indeed, the government itself has recognized, in principle, the importance of assisting everyone with “access to adequate and affordable housing,”Footnote 143 thus substantiating the purpose embodied by the CSSA. By directly acting to provide a rent subsidy, the government has recognized (and undertaken) responsibilityFootnote 144 to assist those who cannot support themselves in meeting their basic needs. Therefore, through the concept of indirect (or sector-specific) incorporation, the Social Welfare Department is bound to exercise its administrative discretion consistently with the ICESCR.Footnote 145
In the face of abundant violations relating to cage-housing, not least those identifiable through the minimum core approach, it cannot be ignored that the obligation under Article 11 is also tied to the economic abilities and regulatory capacities of the state. Where Hong Kong fails to meet the minimum core content of Article 11, it bears the burden of showing it has used all available resources to prioritize fulfilment of its duty.Footnote 146 The territory has an enviable budget surplusFootnote 147 which, accordingly, subjects it to a higher level obligation of realization.Footnote 148 The difficulty however remains with a judicial deference towards the state that places limits on intervention where social welfare is concerned. Stock V.-P., in Kong Yunming (CA), observed in obiter that the extent to which the covenant can be enforced depends on the nature of the relevant ESCR. It was not that the covenant contained a set of “second-class rights,” but rather that “it is always a question of the particular right in issue and what measures are required to fulfill the obligation.” In this regard, some rights not categorized as “resource sensitive” were immediately enforceable. On this basis, social welfare rights were excluded.Footnote 149
The reticence of Hong Kong courts in this regard appears to stem from the implication that they cannot steer government towards obligations that may be financially onerous.Footnote 150 This deference is, no doubt, a corollary of the concern about the courts’ institutional competencies including its lack of expertise to implement, manage, and appreciate the ramification of allocation of social welfare benefits.Footnote 151 Yet, Hong Kong’s absence of democratically elected political branches, executive-led government, and a distinct lack of mechanisms for popular participation in public affairs arguably places an increased onus on the courts to take a more robust approach to developing human rights principles. Indeed, the arguments raised here against limitations on the minimum core of social welfare rights should assist the judiciary in this regard.
As long as China decides not to be a party to the Optional Protocol to the ICESCR, the committee cannot accept individual complaints related to Hong Kong, and cage tenants will have no effective means of redress for their grievances other than through the local courts. A shift in the current legal and political environment therefore is needed to use the ICESCR as a tool for challenging insufficient rent subsidies. As can be seen with the recent recognition in the CFA that indirect incorporation is a viable basis to argue for covenant rights, this shift has already begun. Additionally, Kong Yunming (CFA) represents a significant departure from previous judicial practice. This decision underlines not only the importance of the Basic Law guarantees, but also a new preparedness on the part of the courts to properly analyze the substantive justification and proportionality of policies in the arena of social welfare. If this trend is to continue, the fulfilment of the ESCR may move beyond the exclusive prerogative of executive policy, with the result that the mere discourse of human rights standards currently inhabiting judicial decision-making transforms into a constitutional discourse upon which a future for cage tenants can be built.
4. ICCPR: INDIRECT PROTECTION OF ESCR
As the foregoing analysis has shown, if a cage tenant wishes to claim a right to adequate housing via Article 11 of the ICESCR, they face difficulties domestically relating to its unincorporated status. Against them, there is little evidence of claims which have gone before the courts in that vein—applicants instead relying on policy-based arguments which ultimately have proved unmeritorious.Footnote 152
The ICCPR, which has been incorporated into domestic law, does not directly recognize a right to an adequate standard of living. Nonetheless, it can be used to challenge restrictive social welfare policies that impact upon CPR.Footnote 153 Invoking the ICCPR in this way recognizes the indivisible nature of the two treaties.
4.1 Article 3 of the HKBORO
One argument involves the injunction against IDT as prescribed by Article 3 of the HKBORO (cf. Article 7 of the ICCPR).Footnote 154 This could be raised if the welfare subsidy complained of is sufficiently connected to housing conditions tantamount to IDT.Footnote 155 The difficulty with IDT lies in the highly context-specific nature of the right. Definition of all conditions that will engage the right has evaded the court’s reach.Footnote 156 Nonetheless, a survey of Hong Kong and international jurisprudence illustrates that it is possible to draw a correlation between conditions endured by cage tenants and conditions courts have accepted as encompassed by the protection of Article 3.
4.2 Severe Ill-Treatment
The extent to which this right is of practical value will turn upon the minimum level of severity for the right to be engaged. Hong Kong courts have explained ill-treatment must attain a “minimum level of severity” and involve “bodily injury or intense physical and mental suffering,”Footnote 157 adopting the approach taken in English jurisprudence. In this vein, IDT must amount to serious ill-treatment.Footnote 158 It must deny “the most basic needs of any human being” to a “seriously detrimental extent.”Footnote 159
An objective test is applied, with the result that “minimum” becomes a relative term.Footnote 160 In defining severity, all circumstances of the case are relevant,Footnote 161 including sex, age,Footnote 162 as well as the nature and context of the treatment, such as its duration and its physical and mental effects and impact upon the health of the victim.Footnote 163 A person’s living conditions could therefore come within the ambit of IDT if this minimum level is attained.Footnote 164 While a right to receive welfare benefits is not expressly provided for in human rights instruments which contain the injunction against IDT, where a person cannot work or would be destitute without support, an obligation to provide welfare may be indirectly engaged.
Case-law has directly addressed this issue. In R (Q and others) v. Secretary of State Home Department,Footnote 165 the English courts were confronted with destitute asylum seekers who were prohibited from working and denied social security and accommodation. As this involved a group of individuals who were unable to support themselves, the court found that withdrawal of support could constitute a violation under Article 3 of the European Convention on Human Rights (ECHR).
In Larioshina v. Russia,Footnote 166 the European Court of Human Rights (ECtHR) dealt with the causative impact of an insufficiently low pension plus additional social benefits on the physical and/or mental health of an elderly woman who lived off these combined benefits. It held insufficient benefits received which led to a health condition could amount to the minimum level of severity falling within Article 3 of the ECHR, although no violation was found on the facts.
Koch has rightly argued that the decision leaves a great deal of ambiguity as to the line drawn between underpay and IDT.Footnote 167 Koch focuses on the amount of money awarded to frame the discussion: “Since the Court in principle has acknowledged that there exists a decency threshold or minimum core right to social cash benefits under Article 3, one cannot avoid asking how small a cash payment can be without infringing the threshold?”Footnote 168 Whilst Koch’s instinct that “[p]overty does not necessarily amount to IDT”Footnote 169 is well founded, her delineation of the threshold for Article 3 in this context extends only so far as the duration of treatment. Comparing Tyrer v. UK, Footnote 170 which equated three strokes with a birch to degrading treatment under Article 3, Koch posits that “one may ask why or whether it is less degrading and humiliating to live permanently on € 25 than having to tolerate a physical interference for an even very short period? (sic).”Footnote 171
Whilst the duration of treatment is undoubtedly determinative of the gravity of the violation endured, it says little about the violation itself. In further elaborating upon the scope of IDT, the Hong Kong courts have relied upon Pretty v. UK,Footnote 172 in which the ECtHR discussed the type of treatment that would come within the scope of Article 3:
Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.Footnote 173
This test was also referred to by Lord Bingham in Limbuela v. Secretary of State for the Home Department,Footnote 174 which concerned denial of support to asylum seekers who failed to claim asylum in the UK as soon as reasonably practical. Lord Bingham summarized that “[t]reatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being.”Footnote 175 He further reasoned that “[i]n a context … not involving the deliberate infliction of pain or suffering, the threshold is a high one.”Footnote 176
The issue of establishing IDT in Hong Kong under Article 3 of the HKBORO has since arisen in the context of ESCR. In MA,Footnote 177 the applicants, comprising four mandated refugees and one screened-in torture claimant, argued that the government’s stringent policy violated their rights under both the ICCPR and ICESCR. Specifically, they argued that government policy infringed the right to work, right to privacy, and, of particular relevance here, the prohibition on IDT. The court held that the factor of a prolonged period of prohibition on work was a “causative factor”Footnote 178 of severe major depression, further conceding that severe major depression could amount to an extreme form of “intense physical or mental suffering.”Footnote 179 The judgment also underscored that IDT was not solely focused on treatment that placed refugees in a position of destitution, but also the denial of individual dignity. Life as an individual was “not all about survival and subsistence”; an individual could suffer IDT arising from feelings of helplessness and social exclusion in being unable to work.Footnote 180
An analogy can be drawn with cage tenants. Waiting lists for public housing are of such a length as to have a deterrent effect, constructively forcing them to reside in cage-cubicles instead.Footnote 181 There they are surrounded by overbearing uncertainties of gaining public housing and spontaneous evictions, as has been evidenced by local non-governmental organizations (NGOs).Footnote 182 Given the statistics on the duration of the waiting list for public housing, the indefinite nature of waiting to improve living conditions may lead to conditions including helplessness, social exclusion, and severe depression. No doubt for these reasons, the UN described cage-housing as “an affront” to dignity.Footnote 183
However, despite obiter discussion in MA on this point, a loss of dignity is relevant but not determinative.Footnote 184 The courts are ultimately required to look at the effect of the specific treatment alleged and, although a factor, emotional distress would not satisfy the threshold by itself.Footnote 185 It would be necessary to show certain circumstances specific to cage-housingFootnote 186 in fact caused them serious suffering. This could be either physical or psychiatric injury or even psychological harm.Footnote 187 Distress which is deemed particularly serious and can be evidenced, directly or inferentially,Footnote 188 would therefore meet the objective standard.Footnote 189
Cage-housing conditions affect residents physically and psychologically. Direct evidence of anguish and distress caused by the conditions in cage-cubicles abounds.Footnote 190 Without proper facilities for the everyday satisfaction of basic needs, life is made problematic and unsanitary; cooking, eating, cleaning, personal hygiene routines, sleeping, and even intimacy are all relegated to a publicly shared complication. With large numbers living together so squalidly, the risk of contracting diseases becomes unavoidableFootnote 191 and the resultant lack of security, loneliness, and despair can only impair mental health.Footnote 192 It is possible to infer that distress of a sufficient level for IDT would follow. There is also a further risk of cage tenants suffering “from a mental condition that meant that [they] could not fully appreciate [their] own suffering, or protect [themselves] from it”—a form of vulnerability English courts have highlighted as being capable of satisfying the objective test.Footnote 193
It is further necessary to factor in the status of the victim of the ill-treatment in making a determination. In this regard, children and, by analogy, the elderlyFootnote 194 are particularly vulnerable if exposed to cage-cubicle conditions and this is a factor which the courts must consider.Footnote 195 In the case of children, family life is disrupted. Children are likely affected in that some develop low self-esteem through self-comparison between themselves and their peers.Footnote 196
In determining then whether the threshold for IDT has been met, a contextual approach requires examination of the length of time that the individual was or is to be deprived of the right in question, along with the nature of the detriment suffered as a direct result of the treatment.
4.3 A Duty to Assist
Once it has been established that there is a “substantial and imminent”Footnote 197 risk of ill-treatment of the kind that falls within the scope of IDT, the question becomes whether denial of sufficient rent subsidy could reasonably be said to amount to treatment that required positive action to be taken on the part of the authorities. In other words, how is responsibility imputed upon the government for the suffering of cage tenants? A finding of liability is significant in light of the absolute nature of the Article 3 right.Footnote 198
The injunction against IDT imposes both negative and positive duties on a government which equate to acts (treatment) and failures to act (failure to treat).Footnote 199 Positive obligations are distinguished from negative obligations in that the former require positive intervention by the state, whereas the latter require it to refrain from interference.Footnote 200
Confusion in the English courts on this issue has shown that distinguishing between positive and negative duties is no simple task.Footnote 201 A line of English authority which interpreted the scope of state obligations under Article 3 of the ECHR suggested that the dichotomy between negative/positive had become diminished in importance: “The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.”Footnote 202 Despite the boundary often being an artificial one, the jurisprudential line taken by courts indicates that it is a distinction to be maintained.Footnote 203
In the example of cage tenants, while it is possible to demarcate between the state’s obligation to ensure that no one is destitute (a positive obligation to provide social assistance) and the state’s obligation to protect persons against violations by non-state actors (also a positive obligation), the distinction is unproblematic. The imposition by LegCo of a regime that provides rent subsidies to individuals, without which recipients would face destitution, and with knowledge that the subsidy bears no reflection of the actual cost of adequate accommodation, amounts to positive action directed against them and not to mere inaction.Footnote 204 On this basis alone, denying substantive and adequate welfare support for housing needs constitutes positive action undertaken by the Social Welfare Department that violates Article 3 of the HKBORO. Put differently, the Hong Kong government is under a positive obligation to provide support insofar as it is necessary to prevent cage tenants from experiencing conditions of degradation which would violate the injunction on IDT.
On this point, Lord Bingham in Limbuela explained that “A general public duty to house the homeless or provide for the destitute cannot be spelt out of article 3.”Footnote 205 While this appears to navigate away from a general right to housing the destitute, he continued:
But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life.Footnote 206
While Lord Bingham’s discussion of the threshold was in the context of destitute asylum seekers whose only recourse for survival was via welfare provided by the host state, the parallels in vulnerability between the former category of claimant and cage tenants, as argued earlier, is such that hard distinctions become less sustainable. Both have limited or no means to support themselves, and rely upon the state (which has undertaken to support them) in obtaining basic essentials, including accommodation.
It is further arguable that the rent subsidy policy in Hong Kong merely amplifies the reliance CSSA recipients have upon the state. Housing policies which, in effect, compel residents to reside in accommodation indistinguishable from a cage for survival can lead to perpetual dependence, isolation, loss of confidence, psychological and social problems, and the erosion of skills, as noted above, thereby placing this group at risk of perpetual supplication.
Indeed, an approach to articulating the right grounded in economic survival has gained traction in the Hong Kong courts. Fok J.A. in MA observed in obiter:
… there is more to cruel, inhuman or degrading treatment and human dignity than either destitution or complete mental breakdown. It seems to me it is certainly arguable that an inability to function economically may well give rise to cruel, inhuman or degrading treatment.Footnote 207
This echoes Khosa v. Minister of Social Development,Footnote 208 where the Constitutional Court of South Africa spoke of the impact on a group of persons excluded from the constitutional right to social security, explaining that such exclusion
... is likely to have a severe impact on the dignity of the persons concerned, who, unable to sustain themselves, have to turn to others to enable them to meet the necessities of life and are thus cast in the role of supplicants.
Waldron’s commentary on “treatment” gives pause for final thought here. He argues that IDT “provisions require those in total control of another’s living situation to think about whether the conditions that are being imposed are minimally fit for a human, with characteristic human needs, vulnerabilities, life-rhythms, and so on.”Footnote 209 Viewed alongside the Hong Kong and international jurisprudence, this article argues that CSSA recipients genuinely in need are subject to the total control of the state (either because of the inadequate subsidy the state provides, knowing destitution is the alternative, or the public housing it restricts to low and deterrent-like levels). In ruling therefore on whether the outcome of a particular policy is justified or not, an individuated assessment of the conditions experienced (i.e. those caused by government policy) would allow the courts to gauge whether they are minimally fit for that person—a useful reflection of the minimum core approach under the ICESCR. By virtue of their descriptor alone, it is hard to see how cage-houses could be viewed as minimally fit for anyone, not least in light of the material conditions portrayed here. As such, on any analysis, conditions found within all such structures ought to fall below this threshold. It follows that the CSSA policy would appear to violate the prohibition on IDT, generating a positive obligation on government to address the source of the mistreatment.
5. CONCLUSION
This article has examined the disturbing conditions endured by cage tenants in Hong Kong by looking at ways in which international human rights standards can be drawn upon in the adjudication and interpretation of constitutional rights in domestic courts. It is hoped the arguments presented in this article could serve as a guide for legislators seeking to give meaning to the right to adequate housing in Hong Kong.
Although the clearest solution to cage-cubicles would be to develop more public housing, thereby negating the need to rely on costly substandard private-sector alternatives, this article has explained why a deeply rooted governmental antipathy towards this subaltern class has resulted in a dearth of housing capacity. Providing sufficient levels of public housing to relocate cage dwellers will take several decades. In the meantime, the next best solution lies with an increase in the derisory rent subsidy to allow all CSSA recipients access to an adequate standard of living. Echoing words of Margot Salomon, it comes as no surprise that the difference between the protection of human rights and their denial is, invariably, political will.Footnote 210
Without necessary pressure from the courts, progress will remain slow. It has therefore been argued that the ICESCR and ICCPR are both a source of Hong Kong law from which enforceable rights flow and, concomitantly, an obligation upon the government to remedy violations by raising welfare entitlements. Examination of these human rights instruments shows the complexity of realizing the right to adequate housing in Hong Kong. But the fact that there is no comprehensive incorporation of the ICESCR into a single piece of legislation (as in the case of the ICCPR) is no bar. There can be incorporation of individual provisions of the covenant by different statutes. An analysis of the domestic jurisprudence indicates the courts’ growing receptiveness to engage with key guarantees from the ICESCR, which do appear in one form or another, throughout different pieces of social legislation.
In light of the severe conditions experienced by cage tenants, the ICCPR may also be of assistance. Although this treaty contains no express reference to a right to adequate housing, this article has taken stock of jurisprudential developments in the arena of the prohibition on IDT in order to demonstrate how socioeconomic rights can be engaged indirectly through this covenant to provide a further avenue of redress for cage tenants. Invoking the ICCPR in this way recognizes the indivisible nature of the ESCR and CPR.
Nonetheless, the respective merits of each approach cannot be ignored. While the advantage of the ICCPR is its domestic incorporation through the HKBORO, its efficacy as an avenue for indirect socioeconomic rights protection is arguably limited by the high evidential threshold posed by the requirements of an IDT violation. Even where the hurdle of satisfying the courts that the requisite level of suffering has been met, this protection remains highly contextual and case-specific, with the result that it may only apply to the individual concerned rather than a category of individuals, thereby reducing the likelihood that this legal remedy will be of wider application. Conversely, despite the fact the ICESCR has not been directly incorporated in Hong Kong law, the protections afforded under the covenant, in particular its elucidation of a minimum core content of key socioeconomic rights, may provide a firmer footing for cage tenants who assert that the current protection of social welfare rights by domestic legislation is inadequate. Crucially, the courts’ recent jurisprudence establishing a minimum core content of the constitutional right to social welfare is potentially far-reaching (and avoids the legal obstacle of incorporation (or lack thereof) posed by Article 39 of the Basic Law). By acknowledging that Article 36 of the Basic Law includes, at a minimum, the provision of basic needs of Hong Kong people, the courts have brought local legislation closer in line with international standards. This shift in approach by the judiciary should precipitate, if nothing more, the advancement of ICESCR-friendly statutory interpretation.
The Hong Kong government has implemented a raft of housing policies marked by minimal compassion which, cumulatively, have aggravated rather than relieved the physical and mental distress of those most in need. By devising and administering the policy that provides for rent subsidies—a paradigmatic act of state—responsibility is unquestionably engaged. Yet cage-housing is an issue where signs of improvement are as invisible as the unfortunates captive inside. As the wealth-divide gap widens, the problem can only worsen. Fifteen years following the handover to China, the UN Development Programme indicated that more than a third of Hong Kong’s income is controlled by the wealthiest 10%, whilst the bottom 10% share only 2%. Income disparity is only set to rise as an ageing population and low birth rate give way to an ever-shrinking workforce. It is against this background that growing reliance on CSSA will only exacerbate the cage-home phenomenon.
In the context of welfare subsidies, this should be a matter of grave and public concern. Instead, that which should shock and concern is slowly sanitized as a pragmatic, unavoidable response to ineffectual housing policy. A “safety net” ought to mean an adequate standard of living, not merely the bare minimum. Nor is placing people in cage-housing conducive to enhancing their ability to re-enter the labour market and recover the ability to provide for themselves and their families. Poor people living in subdivided apartments do so because they have no choice. Political inactivity on this issue simply augments the problem. A more humane approach is called for in the setting of housing welfare policy—one that embraces the international standards highlighted in this article. To this end, human rights jurisprudence has opened a promising door beyond which it can be argued that housing welfare policies violate these standards. For those who inhabit cage-housing, the time has come to step through it.
