How Less Obvious Abuse Persists
Mention the importance of human rights and you’ll usually conjure haunting images of freedom denied, societies ruined and bodies maimed. That’s serious stuff, and surely enough to make even the most light-hearted person stop and think. But not all violations are as noticeable or straightforward. Often protection is in place for the most minor of rights, but it’s systematically challenged, eroded and finally ignored.
Following my last post on the lack of substantial rights and clearly defined obligations for foreign domestic helpers in Hong Kong, I added an ‘I blog for Human Rights’ button to the sidebar at the right. My intention was to identify the rights I’m concerned about within their proper context, and not as purely local issues.
Human rights tend to attract romantic notions about grand errors in the progress of civilisation. But more specifically they’re rights that governments tend to trample on, and their recognition helps to limit state action. The Stanford Encyclopedia of Philosophy describes human rights as “international norms that help to protect all people everywhere from severe political, legal, and social abuses”. The key word here is ‘severe’, and the article goes on to argue against “rights inflation”, or the inclusion of less than urgent, universal problems as human rights.
The main difficulty with this definition, and one that the writer grapples with, is that situations one person considers urgent, severe or somehow reflecting a universal problem might not be the same those that trouble another person. Some abuses are obvious – torture can do no good, and neither can slavery. But what about migrant worker wage inequality and contracts that insist a domestic helper in Hong Kong must live with her employer? Are they abusive, and are they severe enough to be considered restrictions on human rights?
Yes they are, for the very simple reason that they violate internationally recognised agreements on the sort of rights that everyone should have.
The United Nation’s Universal Declaration of Human Rights gives us the first idea that something is wrong in Hong Kong. Leaving aside any other considerations, Article 23 states in part that
Everyone, without any discrimination, has the right to equal pay for equal work . . .
A foreign domestic helper – who has no contractual limits set on the number of hours that she can be asked to work and is likely to toil for 18 of every 24 – is not very likely to receive the same hourly rate enjoyed by a Hong Kong resident in a similar job, even if that person works unpaid over-time.
An even more profound form of abuse is that the government’s standard employment contract, which must be used in all cases, restricts the helper to living at her employer’s place of residence, in what it describes as a “servant room”. This is an obvious limit on freedom of movement and contradicts Article 13, Part 1 of the Declaration, which states that “Everyone has the right to freedom of movement and residence within the borders of each state”.
So how does the Hong Kong government get away with these abuses? Unfortunately it’s a simple task – the Declaration is an unsigned document and is not part of international law.
One UN document that is part of international law offers some promise. States Parties to the International Covenant on Economic, Social and Cultural Rights must agree, in line with Article 7 Part A, to guarantee
Fair wages and equal remuneration for work of equal value without distinction of any kind . . .
Unlike the Declaration of Human Rights, the Covenant does not mention freedom of residence, but this seems to be a good start. China, Hong Kong’s sovereign state, ratified the Covenant in 2001. But there’s an unfortunate catch.
Although Hong Kong is a developed Special Administrative Region of China, the country as a whole is still considered to be developing. And Article 2, Part 3 of the Covenant offers it a convenient get-out clause:
Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
Presumably China has decided that non-national domestic helpers do not deserve this right in Hong Kong. And it’s not likely to change that position in the foreseeable future. The country has yet to sign the UN’s Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
The only legal avenue left for protection is Convention 97 of the International Labour Organisation, a UN body. Otherwise known as the Migration for Employment Convention, Hong Kong is obliged to comply with it following British ratification in 1951, when the city was still a Crown colony. When sovereignty reverted to China in 1997, the central government notified the ILO of the Convention’s continued application in Hong Kong.
Article 6 of the Convention states that ILO members enforcing it must not enact laws or regulations that discriminate against non-nationals in terms of pay and over-time arrangements (Part A, Section I ) or accommodation (Part A, Section III). That would seem to settle the matter, right?
Well, no – there’s a final travesty. Hong Kong is governed in line with its Basic Law, a constitution-like document that outlines governmental responsibilities, the city’s legal relationship with China and the areas in which the central government has absolute say. External affairs – compliance with conventions, in this case – are entirely under mainland control. China has not ratified the Migration for Employment Convention, and gives itself the right, in Article 153 of the Basic Law, to
authorize or assist the government of the Region to make appropriate arrangements for the application to the Region of other relevant international agreements.
In other words, China can instruct the Hong Kong government to ignore any part of the Convention that it doesn’t like, even while claiming to support it. Anything that goes against the draconian contract imposed on foreign domestic helpers is clearly not welcome here.
This doesn’t mean that all hope is lost and no-one should insist that migrant workers have rights that must be upheld. What it shows is that more human dignity is at stake, more internationally recognised norms have been ignored, than most people would presume. The right to equal pay and freedom of accommodation are only two of the problems. But they point to a deprivation of liberty that should not be tolerated.
I have the pleasure of knowing a Hong Kong Chinese professor of sociology who argues that foreign domestic helpers in this city are often treated as ‘modern-day slaves’. Stop and think about that for a while, in light of the international legal situation described here. Had I mentioned it at the beginning of this post you might have disagreed. It would have seemed too much like hyperbole, too bad to be true. But now?
Sometimes the least obvious abuses can hurt the most.