Using the ICESCR in Hong Kong Courts

Abstract

This article will examine the extent to which the International Covenant on Economic, Social and Cultural Rights (ICESCR) should play a role in the adjudication of public law disputes in Hong Kong. It will consider possible usages of the ICESCR as a source of constitutional rights, as an aid to constitutional and statutory interpretation, and its potential influence on development of the common law. Despite not being directly incorporated into domestic legislation, it will be argued that the ICESCR enjoys constitutional status under the Basic Law. The view that the ICESCR is merely 'progressive' or 'aspirational' will also be challenged as a mischaracterization of the legal nature of the covenant, which unduly hinders its enforcement in Hong Kong courts.