Sur Place Refugee Status in the Context of Vietnamese Asylum Seekers in Hong Kong
SUR PLACE REFUGEE STATUS IN THE CONTEXT OF VIETNAMESE ASYLUM SEEKERS IN HONG KONG
This Comment focuses on whether the forced repatriation 5 of
certain individuals or subgroups of Vietnamese asylum seekers violates
international law. 6 At issue are individuals and subgroups within
the larger group of asylum seekers in Hong Kong "first asylum"
camps 7 who are "screened out"8 as "economic migrants" 9 and face
forcible repatriation to Vietnam. Part I provides a brief history of
the flight of Vietnamese asylum seekers and their current situation
in Hong Kong and other countries in Southeast Asia. Part 11
discusses the principle of "non-refoulement"'10 as it relates to the forced
owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his or her nationality and is unable or, owing to such fear, is unwilling to
avail him or herself of the protection of that country, or who, not having a nationality
and being outside the country of his or her former habitual residence as a result of
such events, is unable or, owing to such fear, is unwilling to return to it.
5. See Jim Mann, U.S. Eases Stance on RepatriatingIndochinese "Boat People," L.A. TIMES,
July 28, 1990, at A14 (explaining that forced repatriation refers to forcibly returning people
to their country of nationality).
6. See 1951 Convention, supra note 4, art. 33, 189 U.N.T.S. at 176, as amended by 1967
Protocol, supra note 4, 19 U.S.T. at 6223, 606 U.N.T.S. at 270 (defining obligation of states to
protect rights of refugees under inter,,ational law). The most important articles contained in
these documents are those relating to "refoulement," or the involuntary repatriation of
refugees. Article 33(1) of the 1951 Convention states that "[n]o contracting state shall expel or
return ("refouler") a refugee in any manner whatsoever to the frontiers or territories where
his [or her] life or freedom would be threatened." 1951 Convention, supra note 4, art. 33(1),
189 U.N.T.S. at 156. The doctrine of non-refoulement does not prohibit a state from expelling a
refugee from its territory, but it forbids a state from refouling or returning a refugee to any
country or territory where the refugee's life or freedom would be endangered. See GUNNELL
STENBERG, NoN-ExPULSION AND NON-REFOULEMENT 71 (1989) (stating that to comply with
principle of non-refoulement, refugee must not be sent to country where he or she is at risk of
7. See INHUMANE DETERRENCE, supra note 3, at 8 (defining country of "first asylum" as
country where refugees first arrive seeking temporary asylum); see also Indefinite Detention and
MandatoryRepatriation:The Incarcerationof Vietnamese in HongKong, ASIA WATCH, Dec. 3, 1991, at
3 [hereinafter Indefinite Detention] (establishing that at 1979 Geneva Conference, countries of
Southeast Asia agreed to extend temporary asylum to those who fled Vietnam).
8. See OFFICE OF THE U.N. HIGH COMM'R FOR REFUGEES, HANDBOOK ON PROCEDURES
AND CRITERIA FOR DETERMINING REFUGEE STATUS, para. 189, U.N. Doc. HCR/IP/4/Eng. Rev.
1 (1988) [hereinafter U.N. HANDBOOK]
(explaining that no specific regulations for
determination of refugee status under 1951 Convention exist, and as a result, each contracting state is
left to implement any screening procedures it feels appropriate in light of state's particular
constitutional and administrative structure)
; Daniel Wolf, The Boat People Stilt Deserve Our Help;
Hong Kong's "Screening" of Vietnamese Refugees Is a Farce, WASH. POST, Dec. 26, 1989, at A23
(defining "screening" as process by which status of asylum seeker is determined).
9. See U.N. HANDBOOK, supra note 8, para. 62 (defining "economic migrant" as person
who does not meet definitional requirements of term "refugee" but who voluntarily leaves his
or her native country under exclusive influence of economic considerations to establish
residence elsewhere); see also Guy S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW I
(1983) (noting that economic refugees do not enjoy benefits of protection and assistance
provided by international asylum laws because solutions to their problems are related to
economic aid and development rather than to institution of asylum).
10. See Abigail D. King, Note, Interdiction: The United States' Continuing Violation of
International Law, 68 B.U. L. REV. 773, 774 n.5 (1988) (noting that term "non-refou'ment" is derived
from French word "refouler," meaning to return, reconduct, or send back, and in context of
refugee law, "refouler" refers to international prohibition against returning refugees to any
repatriation of Vietnamese asylum seekers. Part III explores the
possibility of classifying certain individual or groups of asylum
seekers as "refugees surplace" 1 1 and presents shortcomings inherent in
the efforts to monitor the safety of forced and voluntary returnees to
Vietnam. Part IV examines problems inherent in the recognition of
surplace refugee status. Part V recommends that the United Nations
expand the use of its mandate power to recognize asylum seekers as
refugees until Hong Kong fully considers sur place refugee claims,
thus ensuring that the principle of non-refoulement is not violated.
This Comment concludes by urging that the international
community, through the United Nations, renew its commitment to the
principle that all persons who risk persecution based on their race,
religion, nationality, membership in a social group, or political
opinion, are provided a safe haven.
Since 1975, social and political upheavals have caused
approximately two million Southeast Asians to cross international
boundaries seeking asylum. 12 Over one million persons have left Vietnam
alone.13 Many of these people, mainly of Vietnamese, Cambodian,
and Laotian origin, are recognized as refugees under international
law. 14 More than one million refugees have been resettled by
international aid agencies in the United States,' 5 while thousands of
others now live in France, Canada, and Australia. t 6 Thousands of
territory where they are likely to become victims of persecution); see also GoODWIN-GILL, supra
note 9, at 69 (stating that in context of immigration law, "refoulement" is term of art meaning
"summary reconductation to the frontier of those discovered to have entered illegally and
summary refusal of admission of those without valid papers"). The principle of non-refoulement
is not an absolute principle; indeed, factors such as national security and public order have
long been recognized as exceptions to the principle. GOODWIN-GILL, supra note 9, at 95.
11. See U.N. HANDBOOK, supra note 8, para. 94 (defining "refugee surplace" as "[a] person
who was not a refugee when he [or she] left his [or her] country, but who becomes a refugee
at a later date").
12. INHUMANE DETERRENCE, supra note 3, at 1.
13. 1987 WORLD REFUGEE SURVEY, supra note 1, at 51.
14. See INHUMANE DETERRENCE, supra note 3, at 1-2 (observing that when Vietnamese
citizens first began to flee to other Southeast Asian nations, they were treated with
compassion and granted asylum, but as more persons emigrated, that compassion changed to abuse
and emigres were no longer automatically considered "refugees").
15. See Jewel S. Lafontant, Crafting a U.S. Refugee Policyfor Asia and the World, HERrrAGE
FOUND. REP., No. 239 (1990), availablein LEXIS, Nexis Library, Omni File (noting that United
States, by resettling over one million Southeast Asian refugees within its borders since 1975,
has resettled more refugees from that region of world than rest of world combined); see also id.
(stating that in 1990, United States was world's largest donor of money to international
refugee aid agencies)
16. See 1991 WORLD REFUGEE SURVEY, supra note 1, at 36 tbl. 9 (indicating that United
States, with 1,355,856 refugees resettled, Canada, with 287,225 resettled, France, with
needy Southeast Asians, however, continue to flee their homelands
each month, while hundreds of thousands more remain in the
numerous detention centers dotting Southeast Asia.' 7
The longevity of this Southeast Asian crisis has caused despair
among "resettlement countries," 18 including the United States,
Canada, Australia, and
quandary is also
troubling for countries of "first asylum," which in Southeast Asia
include Thailand, Malaysia, Indonesia, the Philippines, and Hong
Western resettlement nations have become "compassion
fatigued" 2 1 as refugee flows that began almost two decades ago
continue with little hope for a permanent solution in the foreseeable
Furthermore, the historic solution, resettlement, is
increasingly less viable because refugee migrations in Eastern Europe
and other parts of the world, 23 combined with a recently relaxed
emigration policy in the former Soviet Union, 24 make competition
for entry into the United States and other resettlement countries
186,957, and Australia, with 172,823 refugees resettled, are world's largest recipients of
Southeast Asian refugees for permanent resettlement).
17. See 1991 WORLD REFUGEE SURVEY, supra note 1, at 33 tbl. 1 (reporting that number
and nationality of refugees in detention centers in Southeast Asia are as follows: Hong Kong,
52,000 Vietnamese; Indonesia, 18,700 Vietnamese and 1800 Cambodians; Malaysia, 14,600
Vietnamese; the Philippines, 19,600 Vietnamese; Thailand, 326,000 Cambodians, 67,400
Laotians, 45,000 Burmese, and 15,000 Vietnamese; and Vietnam, 16,700 Cambodians),
18. See INHUMANE DETERRENCE, supra note 3, at 8 (noting that term "resettlement
countries" generally refers to Western nations that have accepted refugees for permanent
19. 1991 WORLD REFUGEE SURVEY, supra note 1, at 36 tbl. 9.
20. See Mann, supra note 5, at A14 (commenting that more than 110,000 Indochinese are
in refugee camps in listed countries).
21. See Barry James, CARE ChiefAssails Nations' 'Meaner' View of Aid, INTr'L HERALD TRm.
(Paris), Oct. 7, 1991, availablein LEXIS, Nexis Library, Omni File (describing "compassion
fatigue" as phenomenon that manifests itself in decline in foreign aid for asylum seekers);
Takashi Oka, The Ability to Feel, CHRISTIAN SCI. MONITOR, May 10, 1991, at 18 (noting that
compassion fatigue sets in when problems become too large for person to comprehend or
resolve); Jon Swain, Voyage of FearforBoatPeople, SUNDAY TIMES (London), June 17, 1990, § 1,
at 26 (describing existence of global compassion fatigue regarding situation of Vietnamese
22. See Court Robinson, Sins of Omission: The New Vietnamese Refugee Crisiv, in 1988 WORLD
REFUGEE SURVEY, supra note 1, at 5, 11 (noting that long-term solutions might include
resettlement of refugees via use of nonrefugee categories, local settlement on limited basis, and
safe repatriation to refugees' native countries).
23. See Kalman Kulcsar, The Refugee Problem and Hungary, in 1991 WORiD REFUGEE
SURVEY, supra note 1, at 72-74 (discussing refugee flows in Romania and Hungary and
acknowledging possibility of millions of refugees coming to West as result of events occurring in
former Soviet Union and other Eastern Bloc countries).
24. See 1988 WORLD REFUGEE SURVEY, supra note 1, at 83
(observing that 1988 refugee
admissions from Soviet Union to United States increased over previous year's admissions by
552%, comprising 27% of total United States refugee intake, up from only 6% of total
refugees admitted in 1987)
; see also id. (noting that in light of numerical ceiling imposed on
resettlement in United States, great influx of Soviet refugees has had detrimental effect on number
of refugees coming from Southeast Asia); id. (stating that in December 1988, 7000 spaces
allocated to refugees from Southeast Asia and Middle East were reallocated to accommodate
especially keen. 2 5 The net result is a deterioration in the
commitment of the United States and other countries to resettling
Southeast Asian reftigees. 26 First asylum countries, on the other hand, are
concerned that in light of the withering commitment to the
resettlement of Southeast Asian refugees, they will stand alone, saddled
indefinitely with the responsibility of caring for and determining the
future of asylum seekers within their borders.
ment is the plight of the Vietnamese "boat people" currently
residing in detention centers in Hong Kong. Since 1975, asylum seekers
have secretly and illegally departed from Vietnam, crowded upon
tiny, unseaworthy boats, in search of asylum and eventual
resettlement in the West.2 7 The boat people's voyages are extremely
In Hong Kong, officials estimate that about half the
seekers who depart Vietnam by boat never reach land, 29
while others estimate that between twenty and thirty percent of
those fleeing perish at sea. 30 In addition to the natural obstacles
presented by the open sea and the long distances covered, asylum
25. See, e.g., LAWYERS COMM. FOR HUMAN RIGHTS, REFUGE DENIED: PROBLEMS IN THE
PROTECTION OF VIETNAMESE AND CAMBODIANS IN THAILAND AND THE ADMISSION OF
INDOCHINESE REFUGEES INTO THE UNITED STATES 95 (1989) [hereinafter REFUGE DENIED]
(stating that number of spaces allocated to Southeast Asians for resettlement in United States has
steadily declined from 169,200 in 1980 to only 53,000 in 1988)
; Stephen Moore, Flee Market;
More Refugees at Lower Cost, HERITAGE FOUND. POL'Y REV., No. 52, at 64 (1990), availablein
LEXIS, Nexis Library, Omni File
(reporting that in 1990, United States admitted roughly
onehalf total number of international refugees allowed to enter in 1981 and less than one-fifth
total number that was admitted at turn of 19th century)
26. See Al Kamen, Cold War Consensus on Refugee Aid Ebbing Despite Relentless Need, WASH.
PosT,July 20, 1992, at A8 (commenting that because of end of Cold War, United States
commitment to relocating refugees has dwindled, and further asserting that improved relations
between U.S. and Vietnamese Governments have led to reduced numbers of Vietnamese
granted asylum in West); see also Voting with TheirFeet, Their Trabantsand Their Oars, ECONOMIST,
Dec. 23, 1989, at 17, 22 (explaining that while United States has admitted 900,000
Vietnamese since 1975, nation's hospitality is wearing thin, though not as thin as that of other
27. See INHUMANE DETERRENCE, supra note 3, at 7-8 (stating that since 1975, over one
million Vietnamese have escaped from Vietnam by boat in search of asylum in other countries
of Southeast Asia and ultimately in West).
28. See Christine Courtney, The Dreams of a Better Life Sail Away for 'Boat People', L.A.
TIMES, Nov. 10, 1991, at Al, A4 (commenting that travel by "rickety boat" might be cheapest
way to leave Vietnam, but is also most hazardous due to natural dangers of sea and attacks by
pirates); Seth Mydans, PirateAttacks on Vietnam Refugees Fall Sharply, N.Y. TIMES, June 7, 1987,
§ 1, at 22 (observing that although maritime attacks on boat people have dramatically
decreased in number since 1981, violent assaults are still serious problem).
29. See John Saar, Boat People Backlash, NEWSWEEK, June 25, 1979, at 55 (stating that
approximate 50% mortality rate reported by Hong Kong officials for asylum seekers is
horrifying, considering fact that hundreds of thousands of people are involved, and noting that
tragedy is comparable in scale to tragedy of Vietnam War).
seekers also face the danger of pirates who infest the waters of the
women and girls,
destroying boats, and killing the occupants. 3 '
1980 to 1985, the number of Vietnamese asylum seekers
arriving by boat in Hong Kong and other countries of first asylum
consistently dwindled. 3 2 The number of arrivals roughly matched
the number of Vietnamese sent from Hong Kong to resettlement
countries such as the United States, Canada, France, or Australia. 3
By 1986, however, this trend abruptly reversed and the number of
arrivals surged upward, while departures from
Hong Kong camps
simultaneously declined.3 4 This tendency continued into the 1990s,
resulting in the present situation: 60,000 Vietnamese asylum
seekers are crowded into the camps of Hong Kong alone, with tens of
thousands more spread throughout other countries of first asylum.3 5
The upsurge in arrivals in the late 1980s produced dour
consequences as some countries of first asylum reacted harshly to the
influx of new arrivals. Thailand and Malaysia, for example, the
countries closest to Vietnam by boat, publicly announced policies of
"pushing off" asylum seekers who arrived at their shores, or of
intercepting boats a few miles off the coast and towing them back out
to sea.3 6
Furthermore, the forced repatriation of asylum seekers,
camps throughout Southeast Asia).
36. See 1991 WORLD REFUGEE SURVEY, supra note 1, at 64 (stating that in March 1990,
Malaysian navy and marine police pushed off more than 90%o of Vietnamese asylum seekers
and that in July 1990, not one asylum seeker landed safely); Court Robinson, Sins of Omission:
The New Vietnamese Refugee Crisis, in 1988 WORLD REFUGEE SURVEY, supra note 1, at 6
that on January 28, 1988, Thai Minister of Interior announced that any Vietnamese asylum
seekers arriving in Thailand by boat would be pushed back to sea, and commenting that in
following months, 2300 Vietnamese were pushed back, resulting in more than 200 deaths)
Mann, supra note 5, at A14
(noting that since March 1989, Malaysia has "redirected" or
"pushed off" over 8000 Vietnamese asylum seekers, sending them back out to sea)
; The Boat
People Are Shown the Gang-Plank, ECONOMIST, Mar. 18, 1989, at 29 (reporting that Thailand, as
once thought internationally unacceptable, began to be earnestly
considered by countries of first asylum. 37
In response to the reality of "push offs," the threat of unilateral
forced repatriations, and the dilemma of huge numbers of
Vietnamese asylum seekers living indefinitely in camps of first
asylum, the United Nations convened an international conference in
Geneva in June 1989 to search for a solution to the renewed
outpouring of asylum seekers from Vietnam.3 8 Sixty countries,
includpart of its pushback policy, had deliberately rammed and fired on boats of Vietnamese asylum
37. See Mann, supra note 5, at A14 (explaining that members of Association of Southeast
Asian Nations (ASEAN), including Malaysia, Indonesia, Philippines, Thailand, Singapore, and
Brunei, agreed that in order to safeguard national security, they would refuse to accept new
asylum seekers and would force those already present in ASEAN countries to return to
Vietnam and Cambodia unless ASEAN countries received help from United States). Because of
this pressure from ASEAN, the United States has acquiesced, for the first time, in the return
to Vietnam of persons who "do not object" to repatriation. Id. Unfortunately, however, once
first asylum governments determine that particular asylum seekers' motivation for emigrating
is economic rather than political, the governments are more and more inclined to forcibly
repatriate those people. See, e.g., INHUMANE DETERRENCE, supra note 3, at 20 (commenting that
Hong Kong explicitly warns migrants that those found to be economic refugees will be
forcibly returned to Vietnam and will not be resettled in Hong Kong). Such a policy is currently
being executed by Hang Kong and the United Kingdom with regard to screened-out
Vietnamese asylum seekers. See Paul Lewis, U.S. Pressed To Pay for Boat People in Hong Kong,
N.Y. TIMEs, Mar. 11, 1990, § 1, at 8 (discussing proposal by United Kingdom to forcibly
repatriate Vietnamese asylum seekers residing in Hong Kong who do not qualify as refugees
under international law, and noting that United Kingdom intends to implement plan, even
without international endorsement, once arrangements are completed with Vietnam,
including provisions for monitoring of returned refugees by international agencies); see also Boat
People; Pushed Too Far,ECONOMIST, June 23, 1990, at 32 (commenting that first asylum
countries in Southeast Asia want to send Vietnamese asylum seekers back to Vietnam against their
will, despite objections from Vietnam and United States). Forced repatriation thus far has
taken place on a sporadic basis, however. See William Stewart, Dashing Their Dreams; Britain
Begins the Forced Repatriationof the Boat People, TIME, Dec. 25, 1989, at 26 (detailing forced
repatriation of 51 asylum seekers and noting that United Kingdom paid Vietnam $620 for
each returning boat person in exchange for promise that returnees would not be persecuted
in their native land). In response to this incident, White House spokesman Marlin Fitzwater
denounced repatriation as "unacceptable until conditions in Vietnam improve[,]" while the
United Kingdom's Labour Party leader, Neil Kinnock, characterized the repatriation as a
"shameful episode." Id.
38. See Le Xuan Khoa, ForcedRepatriationofAsylun-Seekers: The Case of HongKong, 2 INT'LJ.
REFUGEE LAW 137, 137-38 (1990) (explaining that U.N. conference materialized in direct
response to growing refugee crisis in Southeast Asia). This conference was the second
conference convened by the international community to address refugee flows from Southeast Asia
and, in particular, from Vietnam. The United Nations High Commissioner for Refugees
(UNHCR) convened the first conference in Geneva onJuly 20, 1979, to address the plight of
200,000 asylum seekers who had fled Vietnam and arrived in countries of first asylum during
1979. JANELLE M. DILLER, INDOCHINA RESOURCE ACTION CTR., IN SEARCH OF ASYLUM:
VIETNAMESE BOAT PEOPLE IN HONG KONG 9-10 (1988). At the meeting, representatives of the
65 countries present agreed that resettlement countries such as the United States, Australia,
France, Canada, and the United Kingdom would increase the numbers of refugees they would
resettle in exchange for a promise on the part of ASEAN and Hong Kong to provide
temporary refuge or "first asylum" to refugees arriving at their borders. Id. at 10. Vietnam, for its
part, agreed to make "every effort to stop illegal departures ... for a reasonable period of
time" and to implement an "Orderly Departure Program," or "ODP." Id. ODP allows for the
orderly and safe emigration of refugees based on grounds of family unification and other
ing the United Kingdom, the United States, and Vietnam, 39 agreed
during the conference to implement a "Comprehensive Plan of
Action" in order to stem the flow of asylum seekers and preserve the
principle of first asylum. The plan called for an end to push offs, 40
allowed for the implementation of systematic screening
procedures41 by countries of first asylum as a means to determine whether
asylum seekers met the legal requirements of refugee status, and
produced a renewed commitment on the part of resettlement
countries to ensure that persons "screened in" would continue to be
resettled. 42 The plan was ambiguous with respect to persons
"screened out," or deemed to be economic migrants, 43 stating only
humanitarian concerns. Id. at 11. In the decade ending January 1990, over 130,000
Vietnamese entered the United States by virtue of the ODP program. 1991 WORLD REFUGEE
SURVEY, supra note 1, at 67.
39. See Action Plan Set at 60-Nation Parley, FACTS ON FILE, WORLD NEWS DIGEST, June 23,
1989, at 453, A3 (asserting that primary goal of conference's Comprehensive Plan of Action
(CPA) was to stop flow of refugees fleeing from Vietnam to Hong Kong and other Southeast
40. See STAFF OF SENATE SUBCOMM. ON IMMIGRATION AND REFUGEE AFFAIRS, 101ST CONG.,
lST SESS., INTERNATIONAL CONFERENCE ON INDO-CHINESE REFUGEES 1-2 (Comm. Print 1989)
(commenting that CPA called for all asylum seekers to be granted temporary asylum and not
be sent back to Vietnam before screening); Indefinite Detention, supra note 7, at 3 (stating that
CPA reaffirmed principle of first asylum, which calls for grant of temporary asylum and
termination of push-off policies).
41. See GOODWIN-GILL, supra note 9, at 20
(observing that design and implementation of
procedures for determining refugee status within context of 1951 Convention and 1967
Protocol are left to individual nations)
; see also AMNESTY INT'L, MEMORANDUM TO THE
GOVERNMENTS OF HONG KONG AND THE UNITED KINGDOM REGARDING THE PROTECTION OF VIETNAMESE
ASYLUM SEEKERS IN HONG KONG 6 (1990) [hereinafter MEMORANDUM] (stating that screening
system must identify all individuals who would be subject to human rights violations if
returned to Vietnam and must grant them refugee status); id. at 5 (noting Hong Kong's
agreement to apply "appropriate humanitarian criteria for determining refugee status" and to
follow criteria of U.N. Handbook when screening asylum seekers for determination of refugee
status); DILLER, supra note 38, at 19 (establishing that UNHCR agreed to monitor screening
processes and to arrange for procurement of legal advice for those appealing screening
determinations); INHUMANE DETERRENCE, supra note 3, at 20
(stating that screening procedures of
Hong Kong must comply with 1951 Convention, 1967 Protocol, and U.N. Handbook)
Detention, supra note 7, at 6 (outlining Hong Kong's screening procedures for determining
42. See Henry Kamm, Britain and Vietnam Still at Odds on Refugees, N.Y. TIMES, June 15,
1989, at A19 (reporting that CPA received unanimous approval from participating countries,
established requirements for screening boat people, and endorsed voluntary repatriation for
those who failed screening processes); see also DILLER, supra note 38, at 15 (noting that June
16, 1988, was last day that persons arriving in Hong Kong would automatically be granted
refugee status); Diana D. Bui, Hong Kong: The Other Story: The Situation of Women and Childrenin
Hong Kong's Detention Centres, INDOCHINA RESOURCE ACTION CENTER, Mar. 1990, at I n. I
(explaining that refugee status is conferred on asylum seekers in Hong Kong either by virtue of
their arrival in colony prior to June 16, 1988 refugee "cut-off" date or by way of screening
43. See Boat People; Pushed Too Far,supra note 37, at 32 (commenting that execution of
CPA did not end emigration from Vietnam and did not resolve dilemma of thousands of
Vietnamese asylum seekers who maintain that they are legitimate refugees and not merely
"economic migrants" and therefore refuse to go home); Kamm, supra note 4t2, at A19
(pointing out that CPA did not answer crucial question regarding disposition ofpersons likely to be
refused refugee status yet unwilling to return to their homelands).
that screened-out persons would be returned to Vietnam "
'inaccordance with international practices.' "44 The plan did, however,
endorse the voluntary repatriation of asylum seekers wishing to
turn to Vietnam.
After the conference, however, there was disagreement among
various competing parties regarding the fate of screened-out asylum
seekers. Hong Kong, the United Kingdom, and the Association of
Southeast Asian Nations4 6 argued that the meeting sanctioned, at
least in principle, the forced repatriation of screened-out asylum
seekers. 4 7 The United States rejected the notion that such a
consensus was reached and remained strongly opposed to forcibly
returning any Vietnamese asylum seekers until conditions in Vietnam
improve.4 8 Despite the objections by the United States, Hong Kong
proceeded to carry out forced repatriations of screened-out asylum
seekers, at least on a sporadic basis.4 9
The first forced repatriation of screened-out asylum seekers
involved fifty-one persons returned to Vietnam in December 1989.50
As part of an agreement with Vietnam, the United Kingdom paid
Vietnam $620 for each boat person Vietnam would accept from the
Hong Kong camps. 5 1 These acts of forcible repatriation received
sharp criticism from around the world, particularly from the United
States. 5 2 Despite the outcry, however, the repatriations continued.
In November of 1991, pursuant to another agreement between
Vietnam and Hong Kong's British Government, fifty-nine Vietnamese,
including sixteen women and twenty-three children, were forcibly
repatriated to Vietnam. 53 This group consisted of
"double-backers," or persons who had previously accepted cash incentive
payments and volunteered to return to Vietnam, 5 4 only to again return
to Hong Kong. 5 5 Furthermore, two additional agreements signed
52. See Chris Moncrieff, Boat People: Vietnam Flights "Set to Resume," Press Ass'n Newslile,
Dec. 13, 1989, available in LEXIS, Nexis Library, Wires File (reporting that President Bush
condemned forcible repatriation as "unacceptable" while Claiborne Pell, chair of Foreign
Relations Committee in U.S. Senate, asserted that repatriation was disgrace that could be
damaging to United Kingdom's relations abroad, and noting that Robert Van Leeuwen, member
of international organization that monitors conditions in Hong Kong refugee camps and
protects refugee interests, said his organization "deplored" forced repatriations).
53. Refugees at Risk: ForcedRepatriationof Vietnamesefrom Hong Kong, ASIA WATCH, Aug. 2,
1992, at I n.2 [hereinafter Refugees at Risk]; see Barbara Basler, Hong Kong Begins To Transport
Vietnam Boat People back Home, N.Y. TIMES, Nov. 9, 1991, § 1, at 1 (describing ways in which
Vietnamese asylum seekers were led, carried, shoved, or dragged aboard plane heading to
Hanoi). Many of those forced to return showed little violent resistance, although some
draped themselves in red blankets as a sign of protest. Id
54. See Kathleen Callo, Boat People Fled to H.K for Money, Say Vietnamese Oflcials, Reuter
Libr. Rep., Oct. 23, 1991, available in LEXIS, Nexis Library, Wires File (reporting that
UNHCR provided each asylum seeker who voluntarily returned to Vietnam $410 to help in
his or her reintegration into Vietnamese society, and noting that payments have recently been
reduced because they became incentive for citizens to leave Vietnam and "voluntarily"
return); see also At the Heartof Vietnam: OldDogma andNew Possibility, L.A. TIME:;, Oct. 24, 1991, at
B6 (noting that Vietnam's per capita income is less than $200 per year, which is less than half
of $410 that UNHCR pays to asylum seekers who voluntarily return to Vietnam from Hong
Kong); Courtney, supra note 28, at Al (explaining that double-backers are persons who left
Hong Kong once and returned again to receive money incentive to leave for Vietnam).
55. Basler, supra note 53, at 1; cf IndefiniteDetention, supra note 7, at 23 (pointing out that
double-backers are at particular risk if returned home second time because they are more
likely to be punished).
The United States is receiving criticism because of a perceived double standard regarding
the forced repatriation of Haitian asylum seekers who have sought refuge in the United States.
See, e.g., LAWYERS COMM. FOR HUMAN RIGHrs, REFUGEE REFOULEMENT: THE FORCED RETURN
OF HAITIANS UNDER THE U.S.-HAMAN INTERDICTION AGREEMENT 7 (1990) [hereinafter
REFUGEE REFOULEMENT] (concluding that screening procedures used by United States are
inadequate to evaluate asylum claims of Haitians and as a result, Haitians' forced return to their
native land violates principles of international law); Britain, Vietnam to Hold Talks on More
Repatriations, Agence France Presse, Nov. 19, 1991, available in LEXIS, Nexis Library, Wires File
(indicating that Hong Kong legislators have condemned United States for repatriating Haitian
boat people while at same time vehemently opposing repatriation of Vietnamese boat
people); Refugees from Haiti: Boat People, ECONOMIST, Nov. 23, 1991, at 33, [hereinafter Refugess
from Haiti] (stating that UNHCR Sadako Ogata criticized unilateral decision by United States
to repatriate Haitians). See also Howard W. French, First Boats of Refugees Land in Haiti, N.Y.
TIMES, Feb. 4, 1992, at A3
(indicating that U.S. officials insist that most of 15,000 Haitians
intercepted by U.S. Coast Guard since September 30, 1991 military coup in Haiti are
economic refugees who are ineligible for political asylum)
; Al Kamen, HaitiansAppear Resigned to
Repatriation,WASH. POST, Feb. 3, 1992, at Al (discussing repatriation of Haitian boat people
and noting that of more than 15,000 such persons intercepted by authorities, only 3400 or
30% have been found likely to be true political refugees).
The issue of forced repatriation of Haitians has sparked disagreement among courts in the
United States. See Al Kamen, Supreme Court Clears Way for Forced Return of Haitian Boat People,
WASH. POST, Feb. 1, 1992, at A3 (noting that while U.S. DistrictJudge C. Clyde Atkins issued
stay temporarily halting forced repatriation of Haitian asylum seekers, stay was lifted by six to
by Vietnam and Hong Kong provide for the repatriation of all
asylum seekers whose claims for refugee status are rejected. 56 Hong
Kong plans to continue the policy of forcibly repatriating to
Vietnam all screened-out asylum seekers, who comprise the majority of
the 60,000 or so Vietnamese residing in Hong Kong. 57
State responsibility to asylum seekers is primarily defined in two
documents: the 1951 United Nations Convention Relating *to the
Status of Refugees (1951 Convention) 58 and the 1967 United
Nations Protocol Relating to the Status of Refugees (1967 Protocol). 5 9
Additionally, the Handbook on Procedures and Criteriafor Determining
Refugees Status (U.N. Handbook), published by the Office of the United
Nations High Commissioner for Refugees (UNHCR), is considered
the authoritative document interpreting the 1951 Convention and
1967 Protocol. 60 The most important articles contained in these
documents are those related to refoulement, or the involuntary
triation of refugees.
would be endangered.
Article 33(1) of the 1951 Convention asserts that "[n]o
Contracting State shall expel or return ("refouler") a refugee in any
manner whatsoever to the frontiers of territories where [the
refugee's] life or freedom would be threatened." 6 2 This doctrine of
nonrefoulement does not prohibit a nation from expelling a refugee from
its territory, but rather forbids the refoulement or return of a refugee
to any country or territory where the refugee's life or freedom
The principle of non-refoulement applies to Hong Kong, even
though Hong Kong is not bound as a signatory to the 1951
Convention or the 1967 Protocol, 6 4 because non-refoulement is a customary
norm of international law. 65
Norms of international law evolve as
60. See U.N. HANDBOOK, supra note 8, at I (explaining that United Nations issued
Handbook in response to request by Executive Committee of High Commissioner's Programme for
manual that would set forth procedures and criteria for governments to use in determining
refugee status); see also id.
(stating that explanations provided in Handbook are derived from
information collected by Office of High Commissioner since April 22, 1954, effective date of
1951 Convention, including states' practices and procedures with respect to determination of
refugee status, continuing dialogue between Office and authorities of contracting nations, and
literature produced since April 1954 that addresses situation of refugees)
61. See 1951 Convention, supra note 4, art. 42(1), 189 U.N.T.S. at 182
reservations regarding article 33 of 1951 Convention, which requires signatory nations to observe
; REFUGEE REFOULEMENT, supra note 55, at 7
(positing that principle of
nonrefoulement is fundamental interest protected by 1951 Convention and 1967 Protocol)
STENBERG, supra note 6, at 171 (asserting that concept of non-refoulement constitutes heart of
international refugee law).
62. 1951 Convention, supra note 4, art. 33, 189 U.N.T.S. at 176.
63. 1951 Convention, supra note 4, art. 33, 189 U.N.T.S. at 176; see STENBERG, supra note
6, at 171 (stating that to comply with principle of non-refoulement, refugee must not be sent to
country where risk of persecution exists for that individual on basis of criteria in Convention
64. See 1991 WORLD REFUGEE SURVEY, supra note 1, at 31
(indicating that Hong Kong is
not on list of signatories to 1951 Convention or 1967 Protocol)
65. See REFUGEE REFOULEMENT, supra note 55, at 58 (asserting that non-refoulenent is
undisputed peremptory norm of international law); see also King, supra note 10, at 787-94
(arguing that non-refoulenent is customary norm of international law under test established by
International Court of Justice in North Sea Continental Shelf Cases because of its
"normcreating" character and because nations' practices regarding non-refoulement are extensive,
uniform, and reflect sense of legal obligation). A number of international agreements and
documents support the conclusion that non-refoulement is a customary norm of international law.
For example, article II of the 1969 Organization of African Unity Convention prohibits
nations from denying entry to or expelling asylum seekers, which forces asylum seekers to
return to or remain in territories in which they face risks of persecution. Organization of
African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa,
adopted Mar. 31, 1976, art. 11(3), 1001 U.N.T.S. 45, 48. The U.N. Declaration on Territorial
Asylum similarly directs that asylum seekers may not be rejected at national frontiers and, if
the result of general and consistent practices followed by states out
of a sense of legal obligation. 6 6 All states, unless they persistently
object to a norm of customary law during its formation, 6 7 are bound
by such norms.6 8 Hong Kong, as a member of the international
community that has not persistently opposed the norm of
non-refoulement, is obligated to observe the principle.6 9 Additionally, Hong
Kong explicitly agreed in the context of the Comprehensive Plan of
Action7 0 to conduct its policy regarding Vietnamese asylum seekers
under principles embodied in the 1951 Convention, the 1967
Protocol, and the U.N. Handbook.7 1
Hong Kong has not taken the position that it is not bound under
international law to respect the principle of non-refoulement.72
Rather, Hong Kong argues that because non-refoulement applies only
to persons who meet the legal definition of "refugee," 7 3 persons
they have already entered the country in which they are seeking asylum, may not be expelled
from that territory or returned to any country in which risks of persecution based on their
race, nationality, religion, social status, or political opinion exist. U.N. Declarationon Territorial
Asylum, G.A. Res. 2312, U.N. GAOR, 22d Sess., Supp. No. 16, at 81, U.N. Doc. A/6716
(1968). The American Convention on Human Rights also states that an alien may not be
deported or returned to any country where there is a threat to that person's life or liberty
based on race, religion, nationality, political opinion, or social status. American Convention on
Human Rights, Nov. 22, 1969, art. 22(8), O.A.S./Official Records OEA/SER. K/XVI/I.1, Doc.
65, Rev. 1, Corr. 1,Jan. 7, 1970, rerintedin 9 I.L.M. 673 (1970) andin 65 AJ.I.L. 679 (1971).
66. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102(l)-(2) (1986) (defining
rule of international law as standard that international community accepts through
international agreement, as general legal principle commonly used throughout international
community, or as custom arising from sense of legal obligation that is exercised in common and
67. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 10 (2d ed. 1973)
(explaining that for nation to "contract out" of customary norm during norm's formation, nation
must demonstrate clearly evidenced opposition to norm in order to rebut presumption of
68. See Statute of the International Court ofJustice, 1978 I.C.J. Acts & Docs. 59 (stating
that court will apply "international custom as evidence of a general practice accepted as
69. See Indefinite Detention, supra note 7, at 6 (arguing that Hong Kong is compelled to
observe principle of non-refoulement by virtue of United Nations statute requesting that
governments cooperate with UNHCR in carrying out Commissioner's duties).
70. See Indefinite Detention, supra note 7, at 3
(describing CPA adopted at 1989
international conference as program addressing issues of first asylum, determination of refugee
status, and options for return of nonrefugees to Vietnam)
; see also supra notes 39-40 and
accompanying text (discussing various interpretations of CPA regarding Vietnamese
71. IndefiniteDetention, supra note 7, at 6. But see DILLER, supra note 38, at 67 (commenting
that duty to apply UNHCR guidelines set out in U.N. Handbook has not been honored by Hong
Kong policies and practices with respect to Vietnamese).
72. See MEMORANDUM, supra note 41, at 5
(reporting statement by Hong Kong
Government that refugee status will be determined and refugees treated in accordance with
international standards, including standard of non-refoulement defined in 1951 Convention and 1967
73. See 1951 Convention, supra note 4, art. 1, 189 U.N.T.S. at 152 (defining "refugee" as
individual who, out of fear of persecution because of race, religion, nationality, membership
in particular group, or political opinion, is unable or unwilling to remain in or return to
country of origin).
deemed to be economic migrants are not entitled to such
protection.74 Thus, Hong Kong contends that returning to Vietnam
screened-out asylum seekers, those determined to be economic
migrants, does not constitute refoulement and is not a violation of
international law. 75
became protected under international law from refoulement to
Vietnam and were eligible for resettlement in third countries. 77 On
June 15, 1988, however, in response to dramatic increases in boat
arrivals, Hong Kong officials began to screen asylum seekers on a
case-by-case basis to determine whether they should be recognized,
under international law, as "refugees. '78
In the screening interviews of asylum applicants, Hong Kong
examiners ask questions focusing primarily on the applicant's motive
74. See Adrifointa Sea of Principle,ECONOMIST, Jan. 20, 1990, at 35 (reporting Hong Kong's
policy of separating economic migrants to be returned to Vietnam from genuine refugees who
are entitled to asylum); Dan Thomas, Lawyers Attack Hong Kong's System for Screening Asylum
Seekers, Reuter Libr. Rep., Dec. 10, 1991, availablein LEXIS, Nexis Library, Wires File
(indicating that Hong Kong defends its policy of returning economic emigres on grounds that such
emigres do not suffer politically based persecution and thus are ineligible for resettlement).
See generally U.N. HANDBOOK, supra note 8, para. 62 (establishing that persons leaving their
homelands for economic reasons are considered economic migrants and not refugees).
75. See Denise Young, H.K to Resume Forced Deportation of Vietnamese, Reuter Libr. Rep.,
May 12, 1992, availablein LEXIS, Nexis Library, Wires File
(reporting Hong Kong's practice
of returning economic migrants to Vietnam as permitted by 1989 Geneva international
agreement stipulating that those not meeting refugee criteria must be returned home)
; see also Dan
Thomas, Hong Kong Deports 28 More Vietnamese Boat People, Reuter Libr. Rep., Dec. 10, 1991,
availablein LEXIS, Nexis Library, Wires Files (discussing intention by Hong Kong
Government to continue forcible return of asylum seekers who do not qualify as refugees).
76. See INHUMANE DETERRENCE, supra note 3, at 3 (stating that asylum seekers who arrived
in Hong Kong betweenJuly 2, 1982 and June 15, 1988 were presumed to be refugees, while
those arriving on or afterJune 16, 1988 are considered illegal immigrants who must be
individually screened to determine refugee status); see also DILLER, supra note 38, at 15 (noting that
as ofJune 16, 1988, asylum seekers would not be considered refugees until determined to be
so by individualized screening process); Still They Come, ECONOMIST, May 6, 1989, at 36
(reporting that Hong Kong's legislature decreed that asylum seekers arriving later than June 15,
1988 are no longer presumed political refugees but must undergo screening to determine
77. MEMORANDUM, supra note 41, at 5.
78. See MEMORANDUM, supra note 41, at 13
(describing procedure by which asylum
seekers initially screened out can become "mandate refugees," persons deemed by UNHCR to fit
1951 Convention definition of "refugee," and thus avoid forced repatriation by Hong Kong
; 1991 WORLD REFUGEE SURVEY, supra note 1, at 62 (reporting that between June
1988 and December 1990, Hong Kong authorities screened in 3800 Vietnamese as
"refugees" and screened out 14,100 as economic migrants, who immediately became subject to
repatriation to Vietnam); id. (noting existence of 20% screening approval rate after appeal
process). See generally supra note 4 and accompanying text (providing international legal
definition of "refugee").
The examiners are most interested in as
whether the applicant was persecuted in the past by the
Vietnamese Government for reasons described in the 1951
Toward this end, examiners inquire into prior military
serstatus is denied.8 4
vice, the cultural, geographic, and political background
tions or resistance groups, religious activities, and any other
evidence that indicates past persecution by Vietnamese Government
officials.8 0 If the applicant can establish a motive for leaving based
on persecution, such as governmental denial of employment,
education, or a business license, forced relocation to a "New
Zone,"' 81 internment in a re-education camp, prison, or torture, and
if the applicant shows that such persecution took place because of
the applicant's race, religion, political opinion, social group, or
nationality, then there is a chance that the applicant will be recognized
as a refugee.8 2 If past persecution cannot be established, however,
seeker's flight was motivated by economic considerations. 83
economic betterment motivates an applicant's departure, the
applicant is classified by Hong Kong as an economic migrant and refugee
79. See DILLER, supra note 38, app. D (reproducing interview form and questions asked
during screening interviews; questions relate almost exclusively to activities within Vietnam of
applicant and applicant's family members).
80. See DILLER, supra note 38, app. D (presenting questions asked during screening); see
alS0 MEMORANDUM, supra note 41, at 8 (noting that interview format allows for interviewee's
input as to "any other points not covered" by standardized questions focusing on activities in
Vietnam, which may allow asylum seeker limited opportunity to discuss activities engaged in
since departure from Vietnam).
81. See DILLER, supra note 38,at 9 (defining New Economic Zone as government-created
agricultural zone where former property owners whose property has been confiscated by
government are relocated to work).
82. See U.N. HANDBOOK, supra note 8, para. 45 (discussing presumption of well-founded
fear of persecution based on either actual past persecution or on perceived threat of
persecution); STENBERG, supra note 6, at 67 (explaining that previous persecution of individual
combined with individual's membership in group that is subject to persecution establish definitive
ground for well-founded fear of persecution, and noting that showing of risk of persecution
can also be sufficient to establish well-founded fear). See generally AMNESTY INT'L, CouNRY
DOSSIERS, VIETNAM: RENOVATION (Doi Mol), THE LAW AND HUMAN RIGHTS IN THE 1980s 2-24
(1990) [hereinafter VIETNAM: "RENOVATION"] (describing various forms of persecution that
exist in Vietnam and evaluating recent legal reforms and government policies that address
persecution); DILLER, supra note 38, at 9 (discussing use of re-education camps and New
Economic Zones by Vietnamese Government); U.S. DEP'T OF STATE, COUNTRY REPORT ON HUMAN
RIGHTS PRACTICES FOR 1987-VIETNAM 828 (1987) (discussing persecution of Vietnamese
citizens, including political, economic, and cultural repression).
83. Cf Indefinite Detention, supra note 7, at 7 (reporting persistent complaint that
interviewers approach asylum seekers with presumption that applicants are economic migrants,
contravening UNHCR guidelines that require giving asylum seekers benefit of doubt where
applicant's statements are difficult to substantiate).
See Indefinite Detention, supra note 7, at 7 (distinguishing refugees from economic
Unfortunately, this analysis ignores the fact that many individuals
or subgroups of asylum seekers, having initially departed Vietnam
for economic reasons, may become political refugees during their
absence from Vietnam.8 5 People fitting this description are known
as "refugees sur place," or people whose technical refugee status
arises while they are away from their country of origin as a result of
circumstances often different from those initially triggering
The U.N. Handbook, interpreting the 1951 Convention and
the 1967 Protocol, mandates that recognition under a refugee sur
place theory be fully considered.8 7 Because Hong Kong immigration
practice disregards this factor in most cases,88 the determination of
refugee status under the policy represents an overly narrow
application of the definition of "refugee" under the 1951 Convention and
1967 Protocol. Critics of forced repatriation argue that because of
this substantial flaw in Hong Kong's screening process,8 9 many
refugrants and defining economic migrant as person who flees his or her homeland not in
response to persecution but as result of economic considerations).
85. See U.N. HANDBOOK, supra note 8, paras. 94-96 (maintaining that person not initially
classified as refugee may become refugee when circumstances arise that present possibility of
persecution upon return, either because of person's actions outside homeland or because of
changes in political landscape of homeland); Daniel Wolf& Shep Lowman, The Boat People Still
Deserve Our Help; Hong Kong's "Screening" of Vietnamese Refugees Is a Farce,WAsH. PosT, Dec. 26,
1989, at A23 (positing that even if Hong Kong's screening process successfully identified
refugees, it should not be assumed that economic migrants can be safely returned to Vietnam,
as concern is not whether particular individual had good reason to leave but whether, because
of events since leaving Vietnam that give rise to potential for persecution, there is good
reason for individual to fear persecution upon return); see also IndefiniteDetention, supra note 7, at
12-13 (discussing case of Toan, 16-year-old boy who was denied refugee status despite
leaving Vietnam because of persecution resulting from his father's history of working for
American companies and U.S. Air Force). Toan's case became widely publicized when he was
denied refugee status in Hong Kong. Indefinite Duration,supra note 7, at 13. As a result,
government officials in Toan's hometown who previously did not know about his family
background would probably have learned about it through the media. Id. Therefore, Toan
arguably falls within the refugee provisions in paragraphs 94-96 of the U.N. Handbook.
86. U.N. HANDBOOK, supra note 8, para. 94.
87. See U.N. HANDBOOK, supra note 8, para. 96 (mandating thorough consideration of
circumstances to determine whether person has attained surplace refugee status); see also
Statement of an UnderstandingReached Between the Hong Kong Government and UAHCR Concerning the
Treatment of Asylum Seekers Arriving from Vietnam in Hong Kong (Sept. 20, 1988), reprinted in
DILLER, supra note 38, app. B [hereinafter Statement of Understanding]
(noting Hong Kong
Government's agreement to apply humanitarian standards in assessing refugee status in
accordance with UNHCR, 1951 Convention, and 1967 Protocol guidelines)
88. See Indefinite Detention, supra note 7, at 2 (reporting Hong Kong Government's failure
to protect from refoulement Vietnamese who qualify for refugee status because of circumstances
arising during absence from Vietnam). But see supra note 87 and accompanying text
(indicating Hong Kong Government's agreement to assess refugee status according to international
89. See Indefinite Detention, supra note 7, at 7 (stating thai Hong Kong's screening process
has been attacked by human rights advocates since its inception and that Hong Kong follows
neither letter nor spirit of international law); see also INHUMANE DMRRENCE, supra note 3, at
21-26 (discussing Hong Kong's screening process and practice by UNHOR officials of
monitoring screening interviews and estimating that such monitoring occurs only 20% of time). A
Lawyers Committee for Human Rights report cites "general attitude and bias" as another
gees may be erroneously denied reftigee status and subjected to
forcible repatriation to Vietnam. 90 Such a result places people at high
risk of being persecuted in Vietnam, 9 1 and consequently, critics
assert that the misclassification and return of asylum seekers violates
the norm of non-refoulement.
According to the U.N. Handbook, an asylum seeker may qualify as a
refugee even if his or her initial motivation for leaving is not a
wellfounded fear of persecution.93
The critical question is whether
there is a risk of persecution if a person is repatriated. 94
fact that an applicant for asylum has previously experienced
persecution lends greater credibility to a claim of fear of future
persecution,9 5 past persecution is not a prerequisite for obtaining refugee
status under international law.9 6 The United Nations, Hong Kong,
and the international community, under the 1951 Convention and
the 1967 Protocol, have an obligation to ensure that claims of sur
place refugee status are thoroughly considered before forcible
repafundamental problem among immigration examiners in Hong Kong. INHUMANE DETERRENCE,
supra note 3, at 22. Other criticisms include (1) the use of immigration enforcement officers
as examiners, because these officers lack experience in applying refugee criteria under the
1951 Convention and the 1967 Protocol; (2) an "unimaginative" approach regarding the
questionnaire used to categorize asylum seekers; and (3) a flawed questionnaire that focuses
more on irrelevant information and less on fundamental questions concerning reasons for
flight and fear of persecution. Id.
90. See MEMORANDUM, supra note 41, at 6 (discussing requirement for impartial and
effective screening process to adequately protect refugees according to international standards
and arguing that Hong Kong fails to meet such standards by mistakenly classifying actual
refugees as economic migrants).
91. See MEMORANDUM, supra note 41, at 25 (expressing concern that miscategorized
actual refugees will be forcibly returned to Vietnam where they face potential human rights
92. See DILLER, supra note 38, at 67 (asserting that duty ofnon-refoulement is not upheld by
Hong Kong because of shortcomings in screening process); IndefiniteDetention, supra note 7, at
8 (stating that because of apparent egregious errors caused by screening process, refoulement of
refugees is likely); INHUMANE DETERRENCE, supra note 3, at 29 (indicating that despite changes
in screening process made pursuant to agreement between Hong Kong Government and
UNHCR, Hong Kong's screening procedures do not conform to UNHCR standards).
93. U.N. HANDBOOK, supra note 8, para. 94.
94. See U.N. HANDBOOK, supra note 8, para. 96 (indicating importance of determining, for
purpose of gauging risk of persecution upon repatriation, way in which refugee is perceived
and treated by governmental authorities in country of origin); see also STENBERG, supra note 6,
at 64 (suggesting that conditions in applicant's home country that may give rise to risk of
retaliation against returning asylum seeker for actions while away from home country are
crucial to determining refugee status).
95. See STENBERG, supra note 6, at 64 (observing that proof of past persecution may give
rise to presumption of well-founded fear).
96. See U.N. HANDBOOK, supra note 8, para. 45 (stating that fear of persecution can be
based on perceived future possibility of persecution as well as past actual persecution); see also
STENBERG, supra note 6, at 64 (asserting that asylum seeker's lack of showing of persecution
experienced in native land does not preclude possibility that person is refugee).
triation of Vietnamese asylum seekers occurs.9 7
Many countries, including France, Germany, and the United
States, currently recognize and extend protection to sur place
refugees. 98 Sur place refugee status has been recognized in the asylum
claims of diplomats, prisoners of war, students, and migrant
workers.9 9 The following two cases, decided in the United States,
illustrate successful surplace refugee claims and are useful in
understanding how surplace refugee criteria might be applied in the
context of Vietnamese asylum seekers in Hong Kong.
In Matter of Mogharrabi,10 0 the decision of the Board of
Immigration Appeals granting an Iranian student asylum in the United
States illustrates a court's recognition of a surplacerefugee claim. In
1981, Mogharrabi, an Iranian student, went with a friend to the
Iranian Interests Section of the Algerian Embassy in the United
Mogharrabi sought to document his continuing status as
a student so that he could continue to obtain funds from relatives
overseas.10 2 At the Embassy, Mogharrabi and his friend had a
political disagreement with the student-employee who was helping
them.'0 3 The altercation ended with the student-employee telling
Mogharrabi's friend that he and "his kind had better keep their eyes
and ears open because 'their day' would come soon."' 1 4
rabi's friend responded by insulting the employee,10 5 the employee
drew a gun, and Mogharrabi and his friend fled the Embassy. 10 6
The court held that a reasonable person in Mogharrabi's
stances would fear persecution stemming from this incident if he or
she were returned to Iran.' 0 7 Noting that Mogharrabi's account of
why he feared persecution based on his political opinions was
"plausible, detailed, and coherent,"' 0 8 the court concluded that
Mogharrabi had met his burden of showing a well-founded fear of
persecution if returned to Iran.' 0 9 Mogharrabi, however, did not
flee Iran because of a well-founded fear of persecution arising from
events transpiring in that country; instead, he feared return to Iran
because of a risk of persecution that arose during his absence. The
court did not require that Mogharrabi demonstrate past persecution
or otherwise show that he fled Iran because of a well-founded fear
of persecution. 110 Instead, the court focused on the applicant's
present subjective fear of persecution and whether such a fear was
reasonable in light of the objective circumstances. 1 1 '
Similarly, the judicial recognition of refugee status of two Chinese
students who were studying overseas during the Tiananmen Square
massacre provides an example of recognition of a sur place refugee
claim. On June third and fourth of 1989, Chinese troops opened
fire on pro-democracy student demonstrators in Tiananmen Square
in Beijing, China. 1 12 The massacre shocked the international
community and enraged many of the thousands of Chinese students
studying in the United States and elsewhere around the world."13
Consequently, there were protests, demonstrations, and rallies by
Chinese students throughout the United States and the world." 4
Two Chinese students in particular, Luo Jian Guang and Hoy Yu
Yi, joined a rally that lasted for two days outside the Chinese
Embassy in Tokyo, Japan, during which time the students signed their
names to a petition protesting the massacre." 5 The petition was
later delivered to Chinese officials." 6 Additionally, Chinese officials
photographed the demonstration, and the students received
anonymous threatening phone calls after the rally." 7 With the help of
students in Hong Kong, Guang and Yi were able to flee from Japan
to the United States, where they applied for political asylum.I" The
immigration judge ruling on their applications held that, as
members of the pro-democracy foreign student movement, Guang and
Yi had a well-founded fear of persecution if returned to China.' 9
Like the Iranian student in Mogharrabi, the Chinese students'
wellfounded fears of persecution did not exist at or before the time they
left China, but arose as a result of their membership in a particular
social group and expression of their political opinions during their
absence from China. 20
THE NEED To RECOGNIZE SuR PLACE REFUGEE CLAIMS IN THE
CONTEXT OF VIETNAMESE ASYLUM SEEKERS
In order to comply with international refugee law as articulated in
the 1951 Convention, the 1967 Protocol, and interpreted by the
U.N. Handbook, Hong Kong must fully consider sur place refugee
claims of Vietnamese asylum applicants. To qualify for surplace
refugee status, Vietnamese asylum seekers must meet the requirements
set out in the 1951 Convention and the 1967 Protocol.' 2 ' The
Convention and Protocol mandate that a person be outside of the
person's country of nationality and, owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality,
membership in a particular social group, or political opinion, be unwilling or
unable to return to the person's country. 122 While it is unlikely that
most Vietnamese asylum seekers in Hong Kong can qualify as
are forced to return to Vietnam. 147
Hong Kong authorities that it is reasonable for asylum seekers, if
identified, to have subjective fears concerning persecution if they
The plausibility of a subjective fear of persecution is further
supported by the testimony of refugees resettled in the United States.
Vietnamese asylum seekers back to Vietnam is the equivalent of
delivering them to a jail where they will be relegated to second-class
citizenship and discriminated against in school, the workplace, and
at large.1 48
Vietnamese community, gives credence to the claims of asylum
seekers, particularly those who are members of identifiable
subgroups, that they fear the consequences of forced repatriation to
Three Vietnamese camp leaders in Hong Kong summed up the
subjective fears of many asylum seekers in an interview via secret
telephone with Reuters reporters.' 4 9 Having repeatedly stated that
camp residents would prefer death to forcible return to Vietnam,
the leaders proclaimed:
[W]e were really persecuted by the Vietnamese government so we
dare not go back and we believe the international community
realizes this ...we strongly believe that if we go back again we will be
persecuted again as we were before... we fear that nobody from
the international community or UNHCR can have access,
conditions or enough staff to monitor or observe what is happening to
us (if we are sent back).' 50
And in the words of a Vietnamese woman about to be returned to
Vietnam, "'I will never be free, I am going back to Vietnam ....
Nobody knows what will happen to us. And can anyone really help
147. See Courtney, DesperationGrows, supra note 137, at A20 (stating that since
announcement of forced-repatriation agreement, Hong Kong has prevented media from visiting camps
whose residents may be sent back to Vietnam); Courtney, supra note 28, at Al (explaining that
Hong Kong Government blocked access of media to detainees out of fear that publicized
detainees may face persecution if returned to Vietnam).
148. See Thuan Le, Vietnamese Fasters Protesting Refugees' Plight in Hong Kong, L.A. TIMES
(Orange County edition), Dec. 21, 1991, at B I(quoting Vietnamese activists in United States
who claim that asylum seekers returned to Vietnam will face discrimination in work and
education). Chuyen Nguyen, general secretary of the Vietnamese Community of Southern
California, further argues that the problem of refugees should be solved inside Vietnam and not
by making those refugees who have already left return to Vietnam. Id.
149. See Thomas, supra note 139 (recounting interview between Reuters reporters and
three leaders at Whitehead Detention Centre in Hong Kong regarding asylum seekers'
concerns over agreement between United Kingdom and Vietnam in which Vietnam agreed to take
back boat people denied refugee status).
150. Thomas, supra note 139. The article also noted that the refugees were depending on
George Bush and his administration to stop their repatriation to Vietnam. Id.
us once we're back home?' "151
These expressions of fear by asylum
seekers themselves, together with existing policies and attitudes of
Hong Kong authorities and resettled Vietnamese refugees, indicate
that asylum seekers' claims that they fear return to Vietnam are
credible. Further, such claims of fear of persecution are particularly
compelling when made by members of subgroups within the larger
group of asylum seekers who are outspoken regarding their
opposition to the Vietnamese Government or groups that the Vietnamese
Government is likely to consider inherently suspect.
The political atmosphere in Vietnam supports objective element of
well-founded fear based on membership in a particular
Objective circumstances in Vietnamese society support asylum
seekers' subjective fear of persecution based on their membership in
particular subgroups of asylum seekers. Generally speaking, asylum
seekers forced to return to Vietnam face persecution related to
crimes delineated in Vietnam's Criminal Code, which became
effective in June 1985.152
Under the heading "Crimes Against National
Security," it is a crime punishable by up to two years in prison to
illegally flee or attempt to flee the country.' 5 3 According to
Amnesty International, many people are jailed in Vietnam for trying to
leave the country without permission.15 4 Since 1989, efforts by the
Vietnamese Government to stop unauthorized departures have
intensified, resulting in shootings, executions, convictions, and
imprisonments of Vietnamese citizens. 155
During the period between
151. Indefinite Detention, supra note 7, at 20-21.
152. See generally CRIMINAL CODE, arts. 72-83 (Nat'l Technical Info. Serv.
JPRS-SEA-85135, 1985) (Vietnam) [hereinafter CRIMINAL CODE] (including, for example, crimes of fleeing
to foreign country, organizing, forcing, or inciting attempted flight to foreign country,
opposing or organizing to overthrow socialist state, spreading anti-socialist propaganda, or
undermining policy of unity, and providing that these laws apply to acts committed by Vietnamese
citizens outside, as well as inside, Vietnam).
153. Id. art. 89, at 32.
154. See VIETNAM: "RENOVATION," supra note 82, at 42 (discussing cases of three people
arrested for attempting to leave Vietnam and noting that whereabouts of forty others,
majority of whom were arrested between 1978 and 1983, is unknown); Human Rights in Vietnam,
AMNESTY INT'L NEWS RELEASE, Feb. 21, 1990, at 3 (declaring that people who try to leave
Vietnam may be sentenced to imprisonment or re-education, and that others are held without
trial between six months and two years, and some much longer).
155. See VIETNAM: "RENOVATION," supra note 82, at 42
(referring to recent press reports
indicating escalation of official attempts to end clandestine departures and quoting
Vietnamese official as stating that two persons were executed in first six months of 1989 for
illegal departure attempts)
; Wolf & Lowman, supra note 85, at A23 (reporting that according
to U.S. State Department, some Vietnamese citizens caught trying to escape Vietnam have
been beaten to death during governmental interrogations, others have been detained in
reeducation camps, and others, typically organizers of escape attempts, have been executed or
given lengthy prison sentences); see also Vietnamese Boat People Repatriatedfrom Hong Kong,
January and June of 1989, Vietnamese officials reported that 413
were convicted for "illegal departures." 15 6
Many of these
people received prison sentences of up to twelve years. 15 7
ing to Trinh Le, the Vietnamese Social Welfare Ministry official in
charge of resettling returnees, persons caught attempting to flee
Vietnam are heavily punished when they are discovered, with many
receiving sentences of up to fifteen years imprisonment. 158
imposition of such severe penalties on people who attempt to flee
Vietnam is an indicator of the Vietnamese
toward asylum seekers who have successfully fled Vietnam
also a signpost cautioning against hastily returning screened-out
Advocates of forced repatriation argue that the central
government of Vietnam has agreed not to persecute or harass persons
forcibly repatriated to Vietnam, despite their illegal departures from
that nation.1 5 9 Such assurances, however, offer little consolation to
forced returnees.1 60
has agreed not to prosecute
Xinhua Gen. Overseas News Serv., May 12, 1989, availablein LEXIS, Nexis Library, Xinhua
File (quoting Vietnamese officials who emphasized that boat people must be punished for
their attempts to leave their country).
156. VIETNAM: "RENOVATION," supra note 82, at 42.
returning boat people as "lenient" in contrast to Vietnamese Government's punishment of
trip organizers, many of whom have been sentenced to 15 years imprisonment). Vietnamese
citizens who are convicted of organizing illegal departures have been given very severe prison
sentences. See, e.g., Foreign News Briefs, UPI, Dec. 14, 1987, availablein LEXIS, Nexis Library,
UPI File (stating that Vietnamese court sentenced former school principal to 16 years in
prison for helping 19 people try to flee Vietnam by boat and indicating that nine accomplices
were also arrested); Indochina, Reuter Libr. Rep., July 19, 1979, availablein LEXIS, Nexis
Library, Wires File (reporting life imprisonment of organizer found guilty of helping 231 people
to leave Vietnam); "Life andDeath Sentences" to Stop Illegal Emigration, Vietnam News Agency,
Oct. 29, 1991, availablein LEXIS, Nexis Library, Wires File (asserting that Vietnamese border
patrols have increased and that many organizers and intermediaries of illegal departures have
been punished severely, with some being sentenced to death); Vietnamese Official Gets Life Term,
UPI, Mar. 22, 1989, availablein LEXIS, Nexis Library, UPI File (describing Vietnamese radio
report that Vietnamese Supreme Court sentenced senior security official to life imprisonment
for arranging three illegal refugee escapes for 260 people; official's aides received sentences
from two to ten years).
159. See Indefinite Detention, supra note 7, at 22 (examining agreement between United
Kingdom and Vietnam that includes promise by Vietnamese Government to treat returnees
fairly and without persecution); see also MEMORANDUM, supra note 41, para. 3(a) (stating that
Vietnamese Government's pledge to UNHCR regarding those who return voluntarily includes
"waiver of prosecution and of punitive and discriminatory measures"); cf Charles Wallace,
HardshipAwaits "Boat People" ForcedBack to Vietnam, L.A. TIMES, Feb. 18, 1990, at A8 (reporting
Vietnamese official's statement that two boat people imprisoned upon repatriation were
prison escapees who asked to be sent back to jail).
160. Moreover, while monitors from UNHCR and voluntary agencies report that Vietnam
has kept its promise for the most part, they also report a pattern of interrogation and
lowlevel harassment of returnees. Indefinite Detention, supra note 7, at 22. See also Branigin, supra
note 158, at A46 (quoting executive director of Asia Watch, who expressed concern that
harpersons residing in Hong Kong for the crime of leaving the country
illegally, the Government has not agreed to repeal the departure law
altogether. 16 1 Thus, returnees fear they will be branded as persons
who have criminal records regardless of whether they are actually
Asylum seekers believe this will lead to difficulty in
vival in Vietnamese society.' 63
obtaining employment, education for themselves and their children,
housing, business licensing, and other services necessary for
Similarly, under the Vietnamese Criminal Code, members of
certain subgroups of asylum seekers may be at particular risk of
persecution if forced to return to Vietnam. For example, while Vietnam
has extended limited amnesty for the physical act of leaving the
country, it has not extended such a waiver to persons who organize
The Code provides a sentence of five to fifteen years
for anyone who organizes an attempt to flee16 5 and from twelve to
twenty years or life in prison in "especially serious" cases. 16 6
Various subgroups of asylum seekers currently residing in Hong Kong
have organized the departures of family members, neighbors, and
friends and could face prosecution under the Criminal Code on that
basis. Additionally, it is unclear just how broad an interpretation of
"organize" the Vietnamese
Government will apply if it
chooses to enforce this law. Such ambiguity in the law, combined
with a lack of clarification by the Vietnamese Government, results in
assment and interrogation faced by voluntary returnees will be worse for those forced to
return to Vietnam).
161. See CRIMINAL CODE, supra note 152, arts. 85(1), 89, at 31, 32 (defining crime of
illegaily emigrating to foreign country).
162. See Indefinite Detention, supra note 7, at 21 (concluding that problem for returnees is
that Vietnam insists that people have committed crime by leaving country and, even though
they may not face prosecution for this crime, most Vietnamese in Hong Kong believe they will
be treated as if they have criminal records if they return to Vietnam).
163. See IndefiniteDetention, supra note 7, at 21 (explaining that legal documents of persons
considered unpatriotic may be revoked and that without such documents, it is impossible to
legally reside or travel anywhere in Vietnam, to vote, to register marriages, births, or deaths,
or to obtain employment, education, or public medical care); see also Wolf & Lowman, supra
note 85, at A23 (stating that Vietnamese Government imputes political motive to acts of
illegal departure and regards emigres as potential political enemies of state; further noting that
such attitude results in pervasive discrimination in Vietnamese society against asylum
164. See Indefinite Detention, supra note 7, at 22 (asserting that Vietnam has not extended
waiver to persons who commit offenses other than leaving country illegally); see also DILLER,
supra note 38, at 57 (citing D. Wallen, Hanoi Vows Not to Punish Boat People ho Return, SouTH
CHINA MORNING POST, Oct. 11, 1988, at 1) (noting that returnees not considered to have
opposed Government would merely receive warning from Vietnamese officials and
concluding that opponents of Government such as emigration organizers risk greater chance of
165. CRIMINAL CODE, supra note 152, art. 85(2), at 31.
166. CRIMINAL CODE, supra note 152, art. 85(3), at 31. The Criminal Code defines a
"serious crime" as a "crime that causes major harm to society and for which the maximun penalty
is five or more years in prison, life in prison or the death penalty." Id. art. 8(2), at 5.
a situation in which asylum seekers, comprising the subgroup of
those known to have organized departures, are exposed to
significant risks of persecution if forcibly returned to Vietnam. 67
The Code also provides for up to twelve years in prison for
anyone who flees to another country and "remains there with the intent
to oppose the People's Government."' 68 Several individuals as well
as subgroups of asylum seekers in Hong Kong have engaged in
activities clearly in opposition to the Government in Vietnam.16 9
Because of such activities these individuals and groups face a
significant possibility of persecution if forcibly returned to Vietnam.
Article 78 of the U.N. Handbook recognizes the possibility that
such persecution may take place. The U.N. Handbook explains that
persecution may be the result of a lack of confidence in a group's
loyalty to its nation,17 0 noting that such a lack of confidence may
derive from the "political outlook, antecedents or economic activity
of its members."' 7 1
Generally, asylum seekers, in illegally aban
167. See IndefiniteDetention, supranote 7, at 22 & n.55 (citing cases of Vo Minh Suu and Van
Tien Ka, Vietnamese citizens who were jailed after they returned from countries of first
asylum as punishment for organizing departures; asserting further that in one case known to Asia
Watch, woman died under torture in prison after she was accused of selling her boat to group
of counterrevolutionaries). Persons accused of political crimes remain vulnerable despite the
Government's limited amnesty for those who simply physically leave the country. See id. at 22
(explaining that political crime laws could be applied to those in detention centers who have
expressed political opposition to Vietnamese Government through essays, artwork, or
demonstrations); see, e.g., CRIMINAL CODE, supra note 152, arts. 74, 81, 82, 97, 99, at 28, 30, 34-35
(describing numerous crimes under which returnees could be prosecuted for political
"indiscretions"). For example, under article 74(c), "supplying information and documents which
are not state secrets so that they can be used by a foreign country against the Socialist
Republic of Vietnam" carries a penalty of 12 years to life in prison or even the death penalty. Id. art.
74(c), at 28. This provision may be applied to asylum seekers who have cooperated with
international human rights groups on topics such as the number and location of re-education
camps and the treatment of prisoners within those camps. For example, Amnesty
International reports that it has received information from boat people about the location and
organization of re-education camps, the number of people detained in the camps, and the treatment
of the prisoners. VIETNAM: "RENovATION," supra note 82, at 44. If such information is
considered harmful to Vietnam, those who provided it could be prosecuted under article 81 of
the Vietnamese Criminal Code, which defines the crime of "undermining the policy of unity."
CRIMINAL CODE, supra note 152, art. 81, at 30. Article 82 of the Code outlines the crime of
"anti-socialist propaganda." The article provides from 3 to 12 years in prison to anyone who
"spread[s] propaganda against the socialist system," "spread[s] psychological warfare
arguments," or "spread[s] false rumors and causes panic among the people." Id. art. 82, at 30.
Such provisions could easily be applied to prosecute Vietnamese asylum seekers who have
engaged in protests, created signs, resisted repatriation, talked to reporters, or taken other
actions against the Government of Vietnam. Other articles that might provide a basis for
prosecuting asylum seekers upon their return to Vietnam include article 97, "The Crime of
Smuggling or Illegally Transporting Goods or Currency Across the Border," and article 99,
"The Crime of Spreading Decadent Culture." Idearts. 97, 99, at 34-35.
168. CRIMINAL CODE, supra note 152, art. 85(1), at 31.
169. See supra notes 131-40, infra notes 182-92 and accompanying text (discussing
individual and subgroups of asylum seekers that may be subject to persecution based on
circumstances arising after their departure from Vietnam).
170. U.N. HANDBOOK, supra note 8, para. 78.
171. U.N. HANDBOOK, supra note 8, para. 78.
doning their homeland under extremely dangerous conditions, 72
have made known in no uncertain terms the status of their loyalty to
the Vietnamese Government. 173 More far-reaching and salient,
however, are the words and actions of various subgroups within the
larger community of asylum seekers in Hong Kong that have
expressed a hatred and fear of the Vietnamese Government and a
corresponding preference for the U.S. Government, a longtime enemy
of Vietnam.1 74 Vietnam is likely to take notice of the words and
actions of such sworn enemies of the Vietnamese State.
Consequently, while there is reason to believe that Vietnam will question
the loyalty of all asylum seekers in Hong Kong, of particular concern
are persons within various social and political subgroups of the
population of asylum seekers. These subgroups include, for example,
persons who have organized departures of asylum seekers from
Vietnam, groups that have demonstarted a clear lack of loyalty to
the Vietnamese Government, as well as groups of asylum seekers
who remain in Hong Kong camps with the intent to oppose the
"People's Government." Persons within such subgroups face a
particularly grave risk of persecution if forced to return to Vietnam. It
is thus imperative that Hong Kong fully consider applications by
members of such subgroups for recognition as surplace refugees.
2. Politicalopinions expressed by individualsand members of certain
subgroups as basisfor well-foundedfear of persecution ifforcibly
returned to Vietnam
A second basis for granting surplace refugee status to Vietnamese
asylum seekers who may initially have been screened out as
economic migrants is a well-founded fear of persecution based on
political opinion.17 5 To claim a well-founded fear on the basis of
political opinion, an asylum seeker must show (1) that he or she has
a subjective fear of persecution for holding an opinion; (2) that the
172. See supra notes 27-31 and accompanying text (discussing dangers of seeking asylum
by boat in South China Sea).
173. See Indefinite Detention, supra note 7, at 23 (observing that Vietnamese Government
tries to prevent departures by depicting those who leave as unpatriotic).
174. See Courtney, DesperationGrows, supra note 137, at A20 (stating that asylum seekers
have staged numerous protests proclaiming that they would rather commit suicide than live
under communism, and quoting asylum seekers' note from Whitehead camp declaring "you
are pushing our fates into the dead end of communist prisons .... We bring to the American
Congress a message of blood and tears with cries for urgent help from people who thirst for
freedom like we thirst for sunshine. Save us."); Thomas, supra note 139 (quoting Vietnamese
camp leaders who look for support from United States because it is "generous, reasonable,
and anti-communist" country).
175. See U.N. HANDBOOK, supra note 8, para. 80(f) (concluding that having political
opinions that differ from those of government, alone, is not sufficient ground to claim refugee
status; applicant must show fear of persecution because of those opinions).
opinion has come to the attention of the authorities or is attributed
by the authorities to the applicant; and (3) that the opinion is not
tolerated by authorities from the applicant's country of origin. 176
Moreover, all factors that indicate that fear is the predominant
motive behind an applicant's claim for asylum must be considered. 177
Pertinent factors include personal and family background,
membership in particular racial, religious, cultural, social, or political
groups, the personal interpretation of the situation by the applicant,
and the applicant's personal experiences.' 78
a. The political opinions of individuals and subgroups of asylum
seekers as basis of claim of a subjectivefear ofpersecution if
forced to return to Vietnam
The U.N. Handbook notes that the evaluation of an applicant's
subjective fear cannot be separated from consideration of the
personality of the applicant, because psychological reactions differ among
individuals in identical situations.' 79 While one person may possess
political opinions that would make life in the person's homeland
intolerable, another may hold less adamant convictions.180 As is
readily apparent, many asylum applicants in Hong Kong, although
initially screened out as economic migrants, possess a genuine
subjective fear of persecution if returned to Vietnam because of the
political opinions they have expressed during their absence from
As outlined above, to qualify for sur place refugee status on the
basis of one's political opinion, the political opinion held by an
applicant must come to the attention of the authorities in some fashion
or be attributed by the authorities to the applicant.' 8' Generally,
the political opinions of asylum seekers with regard to the
Vietnamese Government are Well known. For example, written
criticisms of the Government are persuasive throughout camps of first
asylum in Southeast Asia. Many camps display signs painted in
large red letters that declare: "After 15 Years in the Shackles of
176. U.N. HANDBOOK, supra note 8, para. 80(0. The "relative importance" or "tenacity"
of the applicant's opinions, as determined by all the circumstances in the case, is also
pertinent to the determination of refugee status.
lI177. U.N. HANDBOOK, supra note 8, para. 41.
178. U.N. HANDBOOK, supra note 8, para. 41.
179. U.N. HANDBOOK, supra note 8, para. 40.
180. See U.N. HANDBOOK, supra note 8, para. 40 (noting that individual personalities may
affect psychological reactions).
181. U.N. HANDBOOK, supra note 8, para. 80(f). The degree of the applicant's public
exposure may be relevant to a determination of refugee status. For example, a writer or a teacher
occupying a prominent public position may receive more public exposure for his or her
political opinions than persons whose jobs do not require frequent contact with the public. Id.
Communist Regime, We Have Found Freedom in PFAC, [Philip
pines First Asylum Camp]; Please Do Not Let Us Despair" and "Do
Not Abandon Us the POW from South Vietnam."' 8 2
Additionally, articles in the international press, as well as
publications, photographs, poems, and artwork by individuals and
subgroups of asylum seekers, reflect political views often critical of the
Vietnamese Government.18 3
For example, the University of Califor
nia at Irvine displayed thirty paintings created by asylum seekers at
depicted the risks and suffering that boat people endure in seeking
freedom. 8 5
Another exhibit of Vietnamese asylum seekers' paint
ings toured various cities in both the United States and Europe. 8 6
Much of the artwork reflects the oppressive conditions that asylum
seekers are willing to endure in order to escape Vietnam and find
freedom.' 8 7 Because each painting was accompanied by the name
of the artist and a short biography, it is very likely that Vietnamese
officials are aware of those persons responsible for the artwork.' 88
Another example of a subgroup of asylum seekers in Hong Kong
that has expressed political opinions and thus is likely to come to
the attention of the Vietnamese
Government includes thirty-nine
asylum seekers that sent a letter to the United States containing a
declaration of the organization they had formed, a plan of action
would follow if forcibly returned to Vietnam, their names,
camp identity numbers, and a photograph of the group taken during
a ceremony commemorating the founding of the group.1 8 9 After
reaching the United States, the letter was returned "address
unknown" to Vietnam rather than to Hong Kong. 190 Subsequently,
the letter was forwarded from Vietnam to Hong Kong without its
accompanying documents, indicating that Vietnamese authorities
had intercepted its contents.' 9 ' According to Asia Watch, other
subgroups of asylum seekers who face risk of persecution based on
political opinion if forcibly returned to Vietnam include persons
whose claims of persecution at the hands of the Vietnamese
Government are extensively publicized, organizers of the demonstrations
against forced repatriation, publishers, editors, writers, and artists
who have published their works in Hong Kong or abroad that
express, explicitly or implicitly, criticism of the Vietnamese
Government. 9 2
The Vietnamese Government, for its part, has actively sought
information about the kinds of activities and opinions held by
individuals and subgroups carried on in first asylum camps. According to
Asia Watch, the Vietnamese Government has conducted extensive
interrogations of some asylum seekers upon their return to
Vietnam, in order to obtain information about organized groups within
the camps.' 9 3 Questions asked during interrogations include
inquiries related to camp organizations and "troublemakers."'' 9 4 In
one instance, the Government confiscated photographs that a
woman had taken in the Hong Kong camps,' 9 5 and the photographs
later reappeared when officials interrogated the woman and asked
her to identify each person in the pictures. 19 6 Other returnees are
189. See Refugees at Risk, supra note 53, at 3 (citingJonathan Braude, U.S. Postmen Put Rebel
Viets'Lists at Risk, SouTH CHINA MORNING PosT, Feb. 2, 1992) (describing this case as example
of situation where Vietnamese asylum seekers may be imperiled due to their opposition to
190. Refugees at Risk, supra note 53, at 3.
191. Refugees at Risk, supra note 53, at 3. Where, as in this case, the Vietnamese
Government is likely to have information regarding asylum seekers, paragraph 96 of the U.N.
Handbook requires that "[r]egard should be had in particular to whether such actions may have
come to the notice of the authorities of the person's country of origin and how they are likely
to be viewed by those authorities .... Id.
192. Refugees at Risk, supra note 53, at 3 (noting that Vietnam closely monitors Vietnamese
193. Indefinite Detention, supra note 7, at 23.
194. See IndefiniteDetention, supra note 7, at 23 (asserting that interrogations conducted by
Vietnamese officials of ex-residents of detention camps included questions seeking
identification of camp organizations and names of "troublemakers," guards, voluntary agency staff, and
195. IndefiniteDetention, supra note 7, at 23.
196. Id. Particularly at risk in these interrogations are the double-backers. See id. (quoting
provincial official in Haiphong as saying, "These people [double-backers] must be punished
for leaving a second time.").
THE AMERICAN UNIVERSrTY LAW REVIEW
eigners or volunteer agencies.1 9 7
asked to identify the origins of any literature they bring back to
Vietnam and to reveal the identity of asylum seekers who work with
Politicalconditions in Vietnam supportingobjective element of
wellfounded fear based on political opinion
For an asylum applicant's fear of persecution to be deemed "well
founded" under international law, the opinions held by the
applicant must not be tolerated by the authorities in the applicant's
country of origin. 19 8
This determination requires an examination of
conditions within the country of origin. 9 9 According to Amnesty
International, Vietnam continues to persecute persons who oppose
or are suspected of opposing the Government and its policies. 2 0 0
Indeed, since 1975, Vietnam has been one of the most repressive
countries in the world. 20 ' The position of the U.S. Government
regarding forced repatriation is that "political conditions in Vietnam
are so repressive that it would be unjust at this point to send anyone
back against his or her will."'20 2 The use by Vietnam of re-education
camps is illustrative of the repression of political dissent and the
free exchange of ideas. For example, although Vietnam has done
away with Resolution 49/NQ/TVQH,2 0 3 which had provided for
without trial or charge and sentencing to re-education
camps to punish persons expressing opinions critical of the
Government, the Government continues to confine persons without trial on
197. Refugees at Risk, supra note 53, at 3.
198. See U.N. HANDBOOK, supra note 8, para. 42 (mandating that inquiry into whether fear
is well founded requires determination of whether sufficient facts exist "to permit the finding
that the applicant would face a serious possibility of persecution" based on political beliefs if
returned to his or her country of origin) (emphasis added).
199. See U.N. HANDBOOK, supra note 8, para. 42 (stating that knowledge of conditions in
applicant's country of origin, although not primary objective, is important element in
assessing applicant's credibility).
200. See VIETNAM: "RENovATION," supra note 82, at 35 (indicating that some persons held
in Vietnamese prisons and re-education camps are prisoners of conscience, detained simply
for peaceful expression of their political, religious, or other beliefs).
201. See Vietnamese Boat People: Hearingof the Asia and PacifAifcfairs Subcomm. of the House
Foreign Affairs Comm., 102d Cong., Ist Sess. (1991) (forthcoming, availabh' in LEXIS, Nexis
Library, Federal News Service File, at *18) (testimony of Rep. Dornan). Representative
I have said quite often that Vietnamese (sic) is probably the most repressive country
in the world right now, more so than Cuba, more so in some ways even than
Chinabecause of the economic collapse; there's still religious persecution; there's as many
or more political prisoners pro-rating the population than there is in China with one
billion, two hundred and fifty, sixty million people ....
202. Id. (testimony of Rep. Solarz) (explaining that reports state that people in Hong
Kong camps are contemplating mass suicide if forced to return to Vietnam).
203. See CRIMINAL CODE, supra note 152, at I (stating that new criminal code incorporates
all previous criminal laws in Vietnam and leaves out any part of 49/NQyTVQH).
a daily basis. 20 4 Those confined to re-education camps include
writers, artists, religious persons, and others who are suspected of being
critics of government policy. 20 5 Because of the lack of information
available from Vietnam, it is unclear how many people suspected of
antigovernment activities are being held without charge or trial in
re-education camps. 206 There is, however, at least one central
reof Vietnam's forty provinces. 20 7
education camp in each These
main camps are divided into several subcamps, each reportedly
holding up to one thousand prisoners. 20 8
Vietnam also makes efforts through intelligence gathering
networks to identify persons critical of official government policies and
like conditions. 2 11
They are provided meager rations, forced to
work long hours, and made to attend political indoctrination
meetings. 21 2 In 1986, Vietnam adopted a policy of doi moi, or
"renovation," that called for various legal, economic, and social reforms. 21 3
Pursuant to this policy, the
204. See, e.g., VIETNAM: "RENOVATION," supra note 82, at 35 (citing State Committee,
National Assembly Resolution, No. 49/NQ./TVQH, June 21, 1961) (reporting that Vietnam has
caused substantial numbers of people who were not connected with war or previous policies
of South Vietnamese Government to be held in re-education camps); see also id. at 36
(explaining that even those who are charged are convicted at trials which fall short of international
standards of fairness).
205. See VIETNAM: "RENOVATION," supra note 82, at 35 (stating that decisions as to who
will be confined are usually made by local "People's Committees," which imprison those
considered to be threat to national security).
206. See VIETNAM: "RENOVATION," supra note 82, at 35 (reporting that Vietnamese
Government claims that not more than 130 civilian and military persons from South Vietnam are
still held in re-education camps).
207. VIETNAM: "RENOVATION," supra note 82, at 44.
208. VIETNAM: "RENOVATION," supra note 82, at 44.
209. See Indefinite Detention, supra note 7, at 21 (discussing Vietnam's surveillance
bureaucracy, designed to collect information on those whose loyalty is suspect); see also infra notes
210-12 and accompanying text (discussing interrogation of asylum seekers upon return to
Vietnam); see also Vietnam: Repression of Dissent, AsIA WATCH, Mar. 4, 1991, at 2 [hereinafter
Repression of Dissent] (observing that Vietnamese National Assembly provided for repression of
those who try to undermine political stability, including those who incite people and rally
them to oppose policies of government).
210. See Repression of Dissent, supra note 209, at 1 (stating that government critics are
arrested without charge and placed in camps where inmates perform hard labor and are
malnourished, abused, and deprived of medical care).
211. See, e.g., VIETNAM: "RENOVATION," supra note 82, at 44-45 (describing prison living
quarters as large concrete barracks with corrugated iron roofs and noting that compulsory
labor is reputed to be part of regimen of all re-education camps).
212. See Repression of Dissent, supra note 209, at 1 (indicating that government critics are
also punished through revocation of their identification documents, which allow citizens to
work, travel, and enjoy public services including education and medical care).
213. See Repression of Dissent,supra note 209, at 2 (discussing Vietnam's new policy
endorsing (1) gradual reform of economy to favor free market economic theory; (2) amnesty for
thousands in re-education camps; (3) promulgation of criminal procedure code; and (4)
limited allowance of social criticism).
thousands of ideological prisoners and released them from
re-education camps. 21 4 In 1989, however, the Government again
tightened controls apparently because of nervousness about the reforms
taking place in Eastern Europe and the Soviet Union. 21 5 This trend
culminated in "Decision 135," handed down by the Council of
Ministers in December 1989.216 The decision, adopted by the National
Assembly, mandated a renewed effort to stifle crime, corruption,
and persons who seek to undermine the party and state.2 1 7 These
examples illustrate that Vietnam continues to systematically
contrary to those
An additional indicia of Vietnam's intolerance for contrary
political opinion is apparent in the Vietnamese Criminal Code. The
Government has not extended any waiver of prosecution or
punishment with regard to asylum seekers for political crimes enumerated
in the Criminal Code.21 8 For example, the Code contains vaguely
defined crimes including "spreading propaganda against the
socialist system," "spreading false rumors and causing panic among the
people," and "making, storing or circulating anti-socialist
documents or cultural products." 21 9 Such crimes could easily be used to
prosecute individuals as well as members of numerous subgroups of
asylum seekers for a myriad of activities that occur on a daily basis in
the detention camps of Hong Kong.2 20 This is particularly true
roles in the
camps. 22 ' Thus the existence of a re-education system in Vietnam
214. See VIETNAM: "RENOVATION," supra note 82, at 35
(noting that according to
Vietnamese governmental announcements, 8300 prisoners were released under 1987 and
1988 amnesties as result of implementation of doi moi program)
215. See Repression of Dissent, supra note 209, at 2
(stating that in 1989, Party Secretary
General Nguyen Van Linh, who in 1987 had urged that social ills be exposed and publicized
in media, called on newspaper editors to soften their criticism of Government)
; see also id.
(reporting that during 1989, Vietnamese Government was involved in thousands of arrests of
suspects, surrenders of criminals during Decision 135 crime drive, and seizures of contraband
216. See Repression of Dissent, supra note 209, at 2 (noting that decision was widely
217. See Repression of Dissent, supra note 209, at 2 (citing Vietnamese editorial explaining
that Decision 135 set precedent for number of future anti-crime campaigns).
218. Indefinite Detention, supra note 7, at 22.
219. CRIMINAL CooE,supra note 152, art. 82, at 30.
220. See Indefinite Detention, supra note 7, at 22 (stating that such laws could be applied to
hundreds of Vietnamese asylum seekers who have, through demonstrations, artwork, and
essays, expressed their opposition to Vietnamese Government); Refugees at Risk, supra note 53, at
4 (stating that on May 15, 1992, Doan Thank Liem, Vietnamese lawyer, arrested on account of
his association with American businessman Mike Morrow, was sentenced to 12 years
imprisonment for spreading "anti-socialist propaganda").
221. See IndefiniteDetention, supra note 7, at 23 (explaining that Vietnamese authorities have
interrogated returnees in specific attempt to identify camp organizers and troublemakers
among asylum seekers in Hong Kong).
VIETNAMESE ASYLUM'SEEKERS IN HONG KONG
designed to stifle and punish all forms of political dissent together
with vaguely defined laws criminalizing contrary political viewpoints
provides objective support for claims by individuals or members of
certain subgroups of asylum seekers that they fear persecution if
forced to return to Vietnam because of activities and political
opinions expressed while absent from Vietnam.
C. Applicant Is Unable or Unwilling To Return to Country of Origin
The final element necessary for recognition as a refugee based on
one's social group or political opinion requires that an applicant be
unable or unwilling to return to his or her homeland on account of a
well-founded fear of persecution. 2 22 Vietnamese asylum seekers in
Hong Kong are clearly unable or unwilling to return to their
homeland, as evidenced by their numerous applications for political
asylum and appeals when such applications are denied, threats of
suicide if forced to return to Vietnam, and rejection of opportunities
to voluntarily repatriate to Vietnam. 22 3 As discussed above, many
boat people who may have originally left Vietnam for economic
reasons may satisfy the subjective and objective elements necessary to
establish a well-founded fear of persecution should they be returned
to Vietnam. 224 Because such fears may arise as a consequence of
membership in particular subgroups or expressions of political
opinions by individuals or subgroups and because such persons are
unwilling to return to Vietnam on account of their fear, claims of sur
place refugee status must be fully considered by Hong Kong.
Problems Inherent in Monitoring Forced Returnees in Vietnam Require
That Hong Kong Thoroughly Consider Claimsfor Sur Place
Hong Kong should adopt a liberal policy of recognizing surplace
refugee claims in light of the colony's inability to effectively and
ac222. U.N. HANDBOOK, supra note 8, para. 34.
223. See supra note 142 and accompanying text (expressing fear of Vietnamese asylum
seekers that, if forcibly repatriated to Vietnam, they are likely to encounter discrimination
from Government and entire society in Vietnam); supra note 152 and accompanying text
(indicating that asylum seekers may face criminal prosecution upon return to Vietnam); supra notes
183-91 (reporting attempts by Vietnamese to qualify for political asylum); supra notes 150-51
(noting unwillingness of asylum seekers to return to Vietnam and stating that many would
rather die than be forced to return).
224. See supra notes 141-42, 148 and accompanying text (arguing that because boat
people fear unfair treatment by Vietnamese Government and society upon return to Vietnam,
they satisfy subjective element necessary to establish well-founded fear of persecution); supra
notes 152-66 and accompanying text (contending that criminal prosecution that boat people
may face upon forced return to Vietnam supports objective element necessary to establish
well-founded fear of persecution).
curately monitor the plight of forced returnees to Vietnam.
Proponents of forced repatriation, including Hong Kong, argue that after
monitoring voluntary returnees in Vietnam, they have found that
the boat people were not badly treated upon their return. 225
Watch, however, reports that "a disturbing pattern of interrogation
and low-level harassment of voluntary returnees has emerged." 226
Such harassment has included making returnees report to the local
police station, sometimes as often as weekly. 22 7 Asia Watch noted
that such reporting is typically required of persons recently released
prison or under house arrest. 2 28
Additionally, according to
one Vietnamese source who met several double-backers returned
under the voluntary repatriation program, returnees are followed by
Vietnamese officials on a regular basis and are denied documents
necessary to function in Vietnamese society.2 29 Forced returnees,
particularly individuals and members of subgroups who have
expressed opinion criticizing Vietnam during their stay in Hong Kong
camps, are likely to face even greater risks of such persecution. 230
Further, because of the nature of the monitoring program, the
reliability of United Nations and United Kingdom reports that no
persecution of returnees has taken place is questionable. 23' Outside
contacts with returnees are commonly arranged through
govern225. See At the Heartof Vietnam: Old Dogma andNew Possibility, L.A. TIMES, Oct. 24, 1991, at
B6 (stating that United Kingdom's monitoring of 10,000 returnees indicates that Vietnam is
keeping its word not to persecute returnees); Sarah Helm, Diplomacy Has Failed Them,
INDEPENDENT, Aug. 14, 1991, at 19 (explaining that British Press interviewed returnees and
found "convincing evidence" that although they tended to suffer from poverty, returnees
were not persecuted by Vietnamese Government after their return); Dan Thomas, Boat People
Leaders Deny Deporteesfrom Hong Kong Motivatedby Greed, Reuter Libr. Rep., Oct. 22, 1991
available in LEXIS, Nexis Library, Wires File (reporting that British Secretary for Security, Alistair
Asprey, stated that there has never been any evidence that any boat people who returned
voluntarily to Vietnam have been subjected to persecution or mistreatment).
226. IndefiniteDetention, supra note 7, at 22 (noting that although for most part Vietnam has
kept its pledge not to persecute returnees, many returnees have experienced treatment of
type usually reserved for criminals); infra notes 227-29 and accompanying text (discussing
harassment and persecution of some voluntary returnees).
227. See IndefiniteDetention,supra note 7, at 22 (indicating that as such harassment grows, so
does perception among returnees that their status has been root of problems in obtaining
jobs or licenses for business and fishing).
228. Indefinite Detention, supra note 7, at 22; see also id. (stating that returnees are further
treated like prisoners when authorities retain part of repatriation allowances given to them
229. See Thomas, supra note 225 (providing example of one prototypical returnee who
always felt frightened because of frequent surveillance by security police); jeealso supra note
212 and accompanying text (discussing denial of important documents).
230. Branigin, supra note 158, at A46 (reporting that Sidney Jones, executive director of
Asia Watch, stated that voluntary returnees "have experienced varying degrees of harassment
and interrogation, and we fear that those forced back will encounter worse").
231. See, e.g., Indefinite Detention, supra note 7, at 24 (noting that limited resources and
requirement that all contacts be made through government officials makes it very difficult to
monitor treatment of tens of thousands of returnees).
For example, when foreign
two returnees in one particular instance, a Vietnamese informant
disclosed that security police instructed the two boat people as to
how to respond. 232 In addition, local officials are typically present at
all interviews of repatriates by human rights monitoring
When Vietnamese officials arrange interviews with returnees
and "sit in" on such interviews, a coercive atmosphere is created
that is likely to inhibit full and frank disclosures of the conditions
will not persecute returnees. 23 6
An additional problem hindering the monitoring of forced
returnees is that UNHCR and other groups have limited resources to put
toward the monitoring process. 23 4
The forced repatriations contemplated by Hong
Kong and other countries of first asylum in
Southeast Asia involve tens of thousands of persons who would be
dispersed throughout Vietnam. 23 5
Such a situation, coupled with a
limited ability to freely access information from Vietnam, precludes
the careful monitoring necessary to ensure that returnees will be
free from persecution.
Furthermore, persecution may take place on
a local level, despite guarantees by the central government that it
In summary, there is no reason to believe that Vietnam intends to
respect the human rights of asylum seekers residing in Hong Kong
if they are focibly returned to Vietnam. This is particularly true with
regard to individuals or members of subgroups of asylum seekers
that have openly criticized and opposed the
232. See Thomas, supra note 225 (explaining that because local officials were always
present at interviews checking for possible persecution, it is very difficult to obtain accurate
accounts of returnees' treatment).
Thomas, supra note 225.
234. See Indefinite Detention, supra note 7, at 24 (calling for involvement of other
international observers, including human rights advocates and representatives from voluntary
agencies, to assist in monitoring process that is currently understaffed and underfunded); see also
U.S. To Seek Assuranceson New Boat People Programme,Reuter Libr. Rep., Sept. 24, 1990, available
in LEXIS, Nexis Library, Wires File (reporting that U.S. State Department spokeswoman
Margaret Tutwiler said that United States "will seek assurances from the UNHCR... that the
existing system for UNHCR monitoring inside Vietnam is expanded to cover all returnees").
235. See Indefinite Detention, supra note 7, at 24 (arguing that because of large numbers of
returnees and enhanced risk of persecution, it is essential to involve international observers
and give them access to returnees in situations outside sphere of influence of Vietnamese
236. See MEMORA DUM, supra note 41, at 26 (arguing that local officials may be able to
operate autonomously to certain extent with regard to local populations); Despite Promises, Viet
Boat People FearHarassmentBack Home, Agence France Presse, Dec. 10, 1991, availablein LEXIS,
Nexis Library, Wires File (quoting Alistair Asprey, Hong Kong's Secretary for Security, as
stating that Vietnamese Government has guaranteed that no returnee to Vietnam will face
persecution and that monitoring by UNHCR will ensure that guarantee is fully respected, and
discussing forms of persecution at local level that are not likely to be detected through
monitoring, as local authorities ignore directions from Hanoi and deal with returnees as they wish).
ment while residing in Hong Kong. Until recently, the Vietnamese
Government refused to accept asylum seekers who were forcibly
repatriated.2 37 Indeed, only when Vietnam wished to strengthen its
ties with the West did it display a reluctant willingness to accept
asylum seekers forcibly repatriated to Vietnam.238 This fact, coupled
with the inability of Hong Kong, the United Nations, and other
organizations to effectively monitor the conditions endured by forced
returnees to Vietnam, demonstrates additional reasons why Hong
Kong should thoroughly consider sur place refugee claims.
DIFFICULTIES INHERENT IN RECOGNITION
OF SUR PLACE REFUGEES
As a practical matter, there is great difficulty inherent in
recognizing sur place refugee claims in the context of Vietnamese asylum
That is, a challenge lies in defining the scope of such a
refugee classification. Should the entire class of boat people benefit
the classification, or should only those individuals or
subgroups of asylum
who face a greater risk of persecution
Before June 15, 1988, the international community
automatically recognized all Vietnamese asylum seekers as refugees, and
nearly all were resettled in the West. 23 9 The fact of automatic
recognition and resettlement, however, created a magnet effect
237. See Henry Kamm, Britain and Vietnam Still at Odds on Refugees, N.Y. TMES, June 15,
1989, at A19 (reporting that Vietnam's Foreign Minister, Nguyen Co Thach, invoked
Universal Declaration of Human Rights to assert that Vietnam would only accept those persons who
volunteered to be repatriated).
238. See Vietnam Will Take Back Rejected Boat People, Cm. TRIB., Oct. 3, 1991, at C2 (stating
that Vietnam has reversed longstanding policy of rejecting forcibly returned boat people and
has expressed willingness to take them back); see also Barbara Basler, Vietnamese Resist
Repatriation Plan, N.Y. TIMES, Oct. 19, 1991, § 1, at 4 (discussing possibility that agreement may be
signed between Vietnam and United Kingdom to forcibly return screened-out asylum seekers
from Hong Kong to Vietnam). According to a British Foreign Office spokesperson in the
colony, "We have indicated we are ready to sign, and they have indicated they are not....
[W]e do not know for certain at this stage what is causing the delay." Id. But see Vietnamese
ForeignMinister Statement on ForcedRepatriation, BBC, Nov. 12, 1991, availablein LEXIS, Nexis
Library, Wires File (quoting Foreign Minister of Vietnam as stating that "Vietnam never
accepts forced repatriation of refugees and only welcomes voluntary repatriates on the basis of
respect for human rights in an orderly manner and in security"); Vietnamese Premier Vo Van Kiet
to Visit Malaysia, Kyodo News Serv.,Jan. 13, 1992, availablein LEXIS, Nexis Library, Wires File
(reporting Vietnam's continued refusal to take back 13,000 asylum seekers in Malaysia).
239. See MEMORANDUM, supra note 41, at 5
(explaining that as of June 16, 1988, all
Vietnamese asylum seekers became subject to new screening process to determine refugee
status, rather than being automatically considered refugee as had happened in past)
240. See Siripora Buranaphan, Vietnam BlamedforBoat People Exodus, Reuter Libr. Rep., May
28, 1988, available in LEXIS, Nexis Library, Wires File (quoting Joint Statement by ASEAN
states, Hong Kong, resettlement countries, and relief agencies indicating that "prospect of
automatic resettlement is a major 'pull factor' drawing people out of Vietnam"); Dinah Lee,
Hong Kongs BoatPeople in Limbo: Refugees Unableto Work orLeave, WASH. POST, May 26, 1985, at
recognition of the entire class of asylum seekers as surplacerefugees
would likely do more to exacerbate the flow of asylum seekers
coming to Hong Kong than contribute to a long-term solution to the
problem. With regard to asylum seekers whose claims are based on
circumstances occurring after their departure from Vietnam, Hong
Kong should recognize as sur place refugees individuals and
members of subgroups who have distinguished themselves through
expression of their political opinions or membership in particular
subgroups in such a way that they face a significant risk of
persecution if forcibly returned to Vietnam.241
Requiring that an individual or a member of a subgroup must face
a significant risk of persecution before surplacerefugee status is
recognized strikes a balance between several competing interests. For
example, Hong Kong has an interest in reducing the numbers of
asylum seekers occupying Hong Kong detention centers and in
curtailing the number of boat people seeking asylum in Hong Kong.
This interest is furthered because, under a significant risk
requirement, a relatively small number of individuals or members of
subgroups of asylum seekers would qualify for sur place refugee status.
Thus, Hong Kong is able to substantially continue its policy of
returning screened-out asylum seekers to Vietnam as well as deterring
future asylum seekers from coming to Hong Kong. Similarly, the
international community has an interest in ensuring that the
principle of non-refoulement is respected. This goal is furthered because
asylum seekers who would face a significant risk of persecution if
returned to Vietnam will be recognized as surplace refugees and thus
spared refoulement to Vietnam. Finally, asylum seekers' interest in
having their asylum claims considered with the full benefit of
principles articulated in the 1951 Convention and 1967 Protocol is
significantly furthered because Hong Kong will thoroughly consider
claims for surplace refugee status based on circumstances that arose
after departure from Vietnam. Fully considering the surplace
refugee claims of individuals and members of subgroups in this manner
would represent a significant step in complying with international
refugee law, preserving the principle of non-refoulement, and
furthering Hong Kong's domestic interests.
Critics may argue that recognizing sur place refugees in this way
A34 (noting "growing suspicion" in West that resettlement program is enticing people to
leave Vietnam in hopes of finding more stable and peaceful place to live).
241. See Linda D. Bevis, Comment, "PoliticalOpinions" of Refugees: InterpretingInternational
Sources, 63 WAsH. L. REv. 395, 411 (1988) (asserting that in determining sur place refugee
status, it is important to inquire whether political opinions of asylum seeker have been noticed
by potential persecutors).
will encourage asylum seekers to express political opinions and
become members of certain subgroups for the purpose of being
recognized as refugees. An asylum seeker's motive for expressing a
political opinion should be given little if any weight, however.
Under the 1951 Convention, as interpreted by the U.N. Handbook,
the motivation behind an asylum seeker's expression of a political
opinion is not relevant. 242 Paragraphs eighty, eighty-two, and
eighty-three of the U.N. Handbook describe "political opinion" but
make no mention of inquiring into the motivation behind
expressions of such opinions. 245 By contrast, paragraph eighty-six, which
defines the circumstances in which a person committing a criminal
act qualifies as a political refugee, specifically states that the
motivation behind the criminal act is a relevant factor to be considered in
determining refugee status.2 44 Such an omission indicates that,
under the U.N. Handbook, the motivation behind an expression of a
political opinion should not be considered in deciding whether to
recognize surplace refugee status, much less be given determinative
weight. Rather, the inquiry should remain focused on whether the
asylum seeker faces a significant risk of persecution if forcibly
returned to Vietnam because of circumstances that arose during the
applicant's absence from Vietnam.
V. RECOMMENDATION THAT THE UNITED NATIONS EXERCISE
MANDATE POWER To SAFEGUARD THE PRINCIPLE OF
NoNREFOULEMENT UNTIL SCREENING PROCESS
ADEQUATELY CONSIDERS SUR PL4CE
Until Hong Kong adopts a policy of fully considering surplace
refugee claims, the United Nations should exercise its mandate
power 245 to recognize those individuals and members of subgroups
within the Hong Kong Vietnamese community who are particularly
vulnerable to political persecution because of circumstances arising
after their departure from Vietnam. If people meet the
requirements of sur place refugee status under the UNHCR statute, they
should qualify for the protection of the United Nations. This is true
whether or not they are so recognized by their host country. 246
242. See id. at 411 (explaining that motive is only relevant to determine if there is
persecution in prosecution for crime).
243. U.N. HANDBOOK, supra note 8, paras. 80, 82-83.
244. U.N. HANDBOOK, supra note 8, para. 86.
245. See U.N. HANDBOOK, supra note 8, paras. 13-19 (setting forth guidelines for United
Nations use of mandate power to grant refugee status).
246. U.N. HANDBOOK, supra note 8, paras. 13-19.
Traditionally, the use of the United Nations mandate power to
confer refugee status has been limited to persons of concern to the
international community. 247 As of December 1991, the United
Nations has extended refugee status under its mandate power to 851
Vietnamese asylum seekers. 2 48
This process of ad hoc review and
recognition of refugee status by the United Nations developed as a
result of the efforts of the Agency for Volunteer Service (AVS), 249
which believed that numerous cases fell within the 1951 Convention
definition of "refugee" but were not successful in obtaining refugee
status before the Refugee Status Review Boards. 250 As a result, AVS
and UNHCR officials agreed on a system in which AVS acts as an
advocate for cases it feels have been resolved incorrectly by the
Review Boards. 25' If the UNHCR official can be convinced that an
of a refugee
Convention, then the UNHCR official has the authority to "mandate
in" such cases and extend refugee status to that individual. 252
Under an agreement with Hong Kong, such "mandate" refugees are
eligible for resettlement and are protected against forced
repatriation to Vietnam.2 53 Additionally, the Government of Hong Kong
has indicated that it is prepared to accept any number of refugees
identified by the UNHCR under its mandate.2 54 Thus, the United
Nations should increase the use of its mandate power to recognize
particularly vulnerable individuals and subgroups who qualify as sur
place refugees until sur place refugee status is fully considered by
Hong Kong officials.
247. See GOODWIN-GILL, supra note 9, at 6 (noting, however, that over past 30 years, this
concept has been broadened considerably).
248. See Dan Thomas, Lawyers Attack Hong Kong's System for ScreeningAsylum Seekers, Reuter
Libr. Rep., Dec. 10, 1991, available in LEXIS, Nexis Library, Wires File (stating that 851 is
number of asylum seekers recognized as refugees by United Nations under its mandate
power, out of total of approximately 19,000 asylum seekers screened out by Hong Kong
249. See id (explaining that Agency for Volunteer Service (AVS) includes group of appeals
counsellors funded by UNHCR who advise and represent asylum seekers appealing negative
250. See MEMORANDUM, supra note 41, at 9 (discussing international Refugee Status
Review Boards set up to review decisions made by immigration officers regarding asylum seekers
screened out during first stage of refugee determination processes); see also id. at 13 (stating
that majority of cases AVS has taken before Refugee Status Review Boards, representing
about 10%o of 180 cases appealed to Review Boards each week, have been unsuccessful even
though many fall clearly within Convention's definition of refugee).
251. See MEMORANDUM, supra note 41, at 13 (characterizing AVS practice as "second look"
at strongest cases that failed to be successful in screening process).
252. MEMORANDUM, supra note 41, at 13.
253. MEMORANDUM, supra note 41, at 13.
254. Indefinite Detention, supra note 7, at 9.
Screening officials in Hong Kong apply an excessively narrow
definition of "refugee" in the case of individuals and subgroups of
Vietnamese asylum seekers because they fail to consider surplace
refugee claims adequately.2 55 The result is an unwarranted denial of
refugee status to many of the Vietnamese asylum seekers screened
out as economic migrants.2 5 6 Hong Kong has laid the groundwork
for the forcible repatriation of thousands of Vietnamese citizens to
Vietnam. 2 57 Many of those to be forcibly repatriated, including
individuals and members of certain subgroups, are likely to
experience persecution and violation of their human rights upon return to
Vietnam. 2 58 These circumstances highlight the inadequacy of Hong
Kong's present application of the 1951 Convention and 1967
Protocol and consequent failure to safeguard the customary norm
The present framework of asylum law, embodied in the 1951
Convention and the 1967 Protocol and interpreted by the U.N.
Handbook, requires the examination and recognition of
surplacerefugee claims.2 6 0 Unfortunately, Hong Kong's refusal to apply such
internationally recognized principles in screening asylum seekers
creates a dangerous situation for numerous individuals and
members of subgroups poised to be forcibly returned to Vietnam. The
United Nations, under its mandate power, has the power to
intervene and classify many of these asylum seekers as refugees sur
place.26 1 Consequently, the United Nations should expand the
number of asylum seekers so recognized in order to safeguard
particularly vulnerable individuals and subgroups from refoulement to a
Vietnam in which they face a significant risk of persecution.2 6 2
255. See supra notes 78-84 and accompanying text (discussing criteria used by Hong Kong
officials to determine asylum seekers' refugee status).
256. See supra note 74 and accompanying text
(discussing economic migrants as persons
not protected under 1951 Convention and 1967 Protocol)
257. See supra notes 49-57 and accompanying text (discussing Hong Kong's planned
forced repatriation of majority of boat people still in colony).
258. See supra notes 204-12 and accompanying text (discussing mistreatment of refugees
that is likely to occur upon their return to Vietnam).
259. See supra note 90 and accompanying text (discussing inadequacy of Hong Kong's
present screening process and arguing that even if process accomplishes stated goal of
separating economic immigrants from political refugees, procedure will not fully uphold principle
260. See supra note 245 and accompanying text (explaining U.N. mandate power to grant
sur place refugees asylum).
261. See supra notes 245-54 and accompanying text
(discussing mandate power of UNHCR
under 1951 Convention and 1967 Protocol)
262. See supra notes 204-12 and accompanying text (discussing persecution of forced
returnees and difficulty of monitoring returnees to ensure their safety).
While thoroughly considering surplacerefugee claims may impose
some hardship on countries of first asylum and present difficulties in
the application ofsurplace criteria, it is a price that must be borne by
the international community in the interest of protecting the human
rights of Vietnamese asylum seekers in Hong Kong. Until
conditions in Vietnam are such that individuals expressing contrary
political opinions or who are members of particular social groups will
not be placed at serious risk of persecution, the international
community must respect the rights of Vietnamese citizens to seek asylum
in other countries and ensure that claims of surplace refugee status
are fully considered.
31. See , e.g., REFUGE DENIED, supra note 25 , at 78-82 ( recounting abuse, rape, and murder of Vietnamese boat people committed by Thai pirates and fishermen in South China Sea); 130 Are Said to Die in PirateAttack on Vietnamese Refugees , N.Y. TIMES , May 7, 1989 , § 1, at 11 (detailing massacre of 130 Vietnamese refugees by pirates off Malaysian coast ).
32. See INHUMANE DErERRENCE, supra note 3, at 8 (noting that Vietnamese arrivals in Hong Kong dropped steadily from high of 6788 in 1980 to only 1112 in 1985 ).
33. See Court Robinson, Sins of Omission: The New Vietnamese Refugee Crisis, in 1988 WORLD REFUGEE SURVEY, supra note 1, at 6 (calculating that between 1980 and 1985, number of departures of Vietnamese nationals from Hong Kong detention camps was greater than number of arrivals and population in camps actually began to dwindle).
34. See INHUMANE DETERRENCE , supra note 3, at 8 (reporting that while number of asylum seekers admitted by resettlement countries began to decrease, number of boat people arriving in Thailand and Hong Kong more than tripled between 1986 and 1988); Still They Come , ECONOMIsT, May 6, 1989 , at 36 ( observing that while number of boat people arriving in Hong Kong in 1987 was 65% higher than in 1986, number of refugees departing for resettlement was 42% lower than in 1986 ).
35. See At the Heart of Vietnam: Old Dogma and New Possibility, L.A. TIMES , Oct. 24 , 1991 , at B6 (reporting that 64,000 boat people are currently living in Hong Kong detention camps); Mann, supra note 5, at A14 (stating that more than 110,000 boat people reside in first asylum
44. Khoa , supra note 38, at 139 (quoting Comprehensive Plan of Action, 1 IJRL 574 ( 1989 )).
45. See Kamm, supra note 42 , at A19 (reporting that CPA endorsed voluntary repatriation for screened-out asylum seekers); see also Khoa, supra note 38, at 139 (observing that although CPA officially endorsed voluntary repatriation, vague wording of endorsement allowed countries dissatisfied with progress of voluntary repatriation to resort to forcible repatriation).
46. See Mann, supra note 5 , at A14 (explaining that ASEAN includes countries of Malaysia, Indonesia , Philippines, Thailand, Singapore, and Brunei).
47. See Mann, supra note 5 , at A14 (observing that governments of Asian nations and United Kingdom are annoyed with refusal of United States to accept principle that boat people should be returned to Vietnam and Cambodia and noting that members of ASEAN have adopted resolution condemning United States for its refusal ).
48. See Lafontant, supra note 15 (indicating that United States objects to forced repatriation of refugees to repressive countries such as Vietnam); Mann, supra note 5, at A14 (noting that Bush administration opposes forced repatriation of Vietnamese boat people ).
49. See infra notes 50 , 53 and accompanying text (describing forcible repatriations of Vietnamese from Hong Kong) .
50. See Stewart, supra note 37, at 26 (noting that on December 12 , 1989 , 51 Vietnamese boat people, including 17 women and 26 children, were rounded up at 3:00 a.m., loaded into trucks, taken to Kai Tak Airport, and put aboard plane to Hanoi, Vietnam); see also Sheila Rule, Hong Kong andBritain Faultedon Boat People , N.Y. TIMES , Jan. 16 , 1990 , at A3 (observing that during forced repatriation on December 12, 1989, Hong Kong officers utilized physical force, including partial strangulation, kicks, and beatings, to subdue asylum seekers so that they would board trucks and planes ).
51. See Stewart, supra note 37 , at 26 ( noting that money paid was in exchange for promise that returnees would not be persecuted) . PRINCIPLE OF NON-REFOULEMENT
97. See U.N. HANDBOOK, supra note 8, para. 96 (mandating careful investigation into possibility of attainment ofsur place refugee status prior to sending asylum seeker home against his or her will); see also Statement of Understanding,supra note 87, app. B (indicating Hong Kong Government's agreement to follow UNHCR guidelines for determination of refugee status as set out in U.N. Handbook interpreting 1951 Convention and 1967 Protocol).
98. See Refugees at Risk, supra note 53 , at 2 (stating that recognition and protection of refugees surplace is codified in statutes of many countries , including France, Germany, and United States).
99. U.N. HANDBOOK, supra note 8, para. 95 .
100. 19 1 . & N. Dec. 439 ( 1987 ).
101. Matter of Mogharrabi, 19 I. & N. Dec . 439 , 447 ( 1987 ).
102. Id .
103. Id . at 447- 48 . At the Embassy, Mogharrabi presented the student-employee with a photocopy of his passport and arrival/departure record to facilitate the documentation of his status . Id. at 448 . The student-employee informed Mogharrabi that the originals of his documents were necessary because students without originals were assumed to have submitted them to the INS pursuant to political asylum claims . Id . Mogharrabi's friend consequently asked to see the student-employee's supervisor. Id. When the supervisor appeared, a fight broke out between Mogharrabi's friend and the student-employee, who grabbed the friend around the neck . Id.
105. Id . Mogharrabi's friend replied that the student-employee and "his kind had robbed Iran of all that was worth living for and that they were nothing more than religious fascists stuffing their pockets with the nation's wealth." Id
106. Id .
107. Id .
108. Id . A finding that a "reasonable" person would fear return to Iran indicates that Mogharrabi's subjective fear was supported by objective circumstances .
109. Id . at 448-49.
110. Id .
111. Id .
112. See Daniel Southerland, Death in Tiananmen; Witnesses Describe the DevastatingAssault, WASH . POST, June 5, 1989 , at Al ( reporting eyewitness accounts of massacre of Chinese students) . See generally Nicholas D. Kristof , Beijing Death Toll at Least 300; Army Tightens Control of City but Angry Resistance Goes On , N.Y. TiMES, June 5, 1989 , at Al ( suggesting existence of further military activity after incident at Tiananmen Square) .
113. See , e.g., Fox Butterfield , Crackdown in Beijing; ForStudents in U.S., GriefandFury, N.Y. TiMES,June 5, 1989 , at All ( describing demonstrations and protests and virulent expressions of outrage organized or exhibited by Chinese students in United States in response to massacre); Robert D. McFadden, The West Condemns the Crackdown , N.Y. TIMES , June 5, 1989 , at A12 (discussing criticisms by many Western nations of Tiananmen Square massacre ).
114. See Sandra G. Boodman , In the U.S., Tears and Defiance; 2 ,500 Rally Here at Chinese Embassy, WASH. POST,June 5, 1989 , at A21 (describing Chinese students' angry reactions throughout United States to killings in Beijing); see also The West Condemns the Crackdown, supra note 113, at A12 (reporting global extent of anguished demonstrations condemning massacre).
115. See Chinese Dissident Students GrantedAsylum in U.S., Reuter Libr . Rep., Oct. 6 , 1989 , available in LEXIS, Nexis Library , Wires File [hereinafter Chinese Dissident Students] (relating story of two Chinese students' plea for asylum) .
116. Id .
117. Id .
118. See Tearful Chinese Student 'Would Rather Die' Than Go Home , L.A. TINEs , Sept. 23 , 1989 , at 27 ( describing events surrounding two students' flight to United States; ).
119. See ChineseDissident Students, supra note 115 (reporting decision of immigration judge).
120. Cf U.N. HANDBOOK, supra note 8, para. 45 (stating that well-founded fear of persecution may be assumed not only from past actual persecution but also from perceived threat stemming from political opinion or membership in particular social group ).
121. See 1951 Convention, supra note 4, art . 1 ( 2 ), 189 U.N.T.S. at 152 (defining term "refugee"), as amended by 1967 Protocol, supra note 4, art . 1 , 19 U.S.T. at 6225 , 606 U.N.T.S. at 268 ( amending definition of "refugee" and defining "refugee sur place" ).
122. See 1951 Convention, supra note 4, art . 1 ( 2 ), 189 U.N.T.S. at 152 ( listing requirements for refugee status), as amendedby 1967 Protocol, supra note 4, art . 1 , 19 U.S.T. at 6225 , 606 U.N.T.S. at 268.
157. VIETNAM : "RENOVATION," supra note 82 , at 42.
158. See William Branigin, Forced Repatriation Sparks New Concerns; Vietnam's Human Rights Policy at Issue, WASH . PosT, Nov. 10 , 1991 , at A46 (stating that Trinh Le described treatment of
182. Taken from photographs by author during trip to camps in countries of first asylum in Southeast Asia ( 1989 - 1990 ). Other signs displayed by interned Vietnamese asylum seekers read: "Seeking Freedom Through Dangers and Death, We Are Proud To Get Much Humanitarian Help from the Free World," "I Would Rather Die Than Return to Vietnam," "The Free World Countries Please Come to Our Rescue," "After the Hell of Communism, The Philippines Is Heaven," "Please Don't Abandon Us and the Children of the Ex-Soldiers Who Had Been Fighting for Freedom." Id.
183. See INDOCHINA RESOURCE ACTION CTR ., STILL LIVES : ART BY VIETNAMESE BOAT PEOPLE IN HONG KONG 3-12 ( 1991 ) [hereinafter STILL LIVES] (depicting political artwork created by Vietnamese asylum seekers in show touring United States); Barbara Basler, Vietnamese Resist Repatriation Plan , N.Y. TIMES , Oct. 19 , 1991 , at 4 (explaining that while reporters are not allowed inside most detention camps, they can often get close enough to witness political demonstrations and read political protest signs displayed by internees); Kristina Lindgren, Vietnamese Internee Art on Display, L.A. TIMES (Orange County edition ), Oct. 31 , 1991 , at B3 (describing exhibit of paintings by Vietnamese nationals interned at Whitehead Detention Centre in Hong Kong as portraying terrible conditions of life in camp).
184. Lindgren , supra note 183, at B3.
185. Lindgren , supra note 183, at B3 (reporting commments of Anh Hong Do, member of Project Ngoc , University of California Irvine student group that sponsored exhibit).
186. See STILL LIVES , supra note 183, at 2 (indicating that exhibit toured cities including San Francisco, Washington, D.C. , Minneapolis , St. Paul, Chicago, New York, London, and Paris).
187. See STILL LIVEs, supra note 183, at 5-10 ( presenting pictures from boats and detention centers of crying children and people sleeping on floors and in crowded, cramped cubicles). Several of the artists stated that they sought artistic freedom in leaving Vietnam and that they had been persecuted in Vietnam . Id. at 9.
188. STILL LIVEs, supra note 183, at 5-10.