Sur Place Refugee Status in the Context of Vietnamese Asylum Seekers in Hong Kong

American University Law Review, Sep 2018

By Josh Briggs, Published on 01/01/93

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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 JOSH BRIGGS - 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. Id. 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 political persecution). 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 France.1 9 The quandary is also deeply troubling for countries of "first asylum," which in Southeast Asia include Thailand, Malaysia, Indonesia, the Philippines, and Hong Kong.20 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 future.22 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 resettlement). 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 asylum seekers). 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 Soviet emigres). 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 dangerous. 28 asylum 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 countries). 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). 30. Id. 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 (noting 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 seekers). 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 Asian countries). 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) ;Indefinite Detention, supra note 7, at 6 (outlining Hong Kong's screening procedures for determining refugee status). 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 process) . 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 re4 5 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 repa6 1 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 63 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 (prohibiting reservations regarding article 33 of 1951 Convention, which requires signatory nations to observe non-refoulement) ; 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 and Protocol). 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 consistent practice). 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 acceptance). 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 law"). 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 refugees). 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 Protocol) . 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 their status). 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 Government) ; 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"). tion.7 9 for departing The examiners are most interested in as sessing whether the applicant was persecuted in the past by the Vietnamese Government for reasons described in the 1951 Conven 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 Economic 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, the examiner will conclude almost invariably that the seeker's flight was motivated by economic considerations. 83 asylum Where 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 mi 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 emigration.86 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 guidelines). 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 9 2 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 While the 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 abuses). 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 Moghar 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 circum1993] 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 refu1993] 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. For example, resettled refugees state that forcibly sending 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 society at large.1 48 Such testimony, echoed throughout the 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 subgroup 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 people were convicted for "illegal departures." 15 6 Many of these people received prison sentences of up to twelve years. 15 7 Accord 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 The imposition of such severe penalties on people who attempt to flee Vietnam is an indicator of the Vietnamese Government's sentiment toward asylum seekers who have successfully fled Vietnam and is also a signpost cautioning against hastily returning screened-out asylum seekers. 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 While Vietnam 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 prosecuted.' 62 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 sur 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 departures.164 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 the term "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 seekers). 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 prosecution). 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 Vietnam. 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 Hong Kong's Whitehead Detention The artwork 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 they would follow if forcibly returned to Vietnam, their names, 1993] 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 Vietnamese Government). 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 overseas press). 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 visiting clergy). 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 for 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 detention 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 Dornan stated: 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 .... Id 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 ideology.20 9 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 Government granted amnesty to 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 persecute persons who hold viewpoints contrary to those Vietnamese Government. 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 regarding persons who have assumed leadership 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 literature) . 216. See Repression of Dissent, supra note 209, at 2 (noting that decision was widely publicized). 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 Refugee Status 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 Asia 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 from 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 upon return). 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). ment officials. For example, when foreign observers interviewed 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 person 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 returnees experience. 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 officials). 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 seekers. That is, a challenge lies in defining the scope of such a refugee classification. Should the entire class of boat people benefit from the classification, or should only those individuals or subgroups of asylum seekers who face a greater risk of persecution benefit? 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 drawing thousands of asylum seekers out of Thus, 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 REFUGEE CLAIMS 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 individual meets the definition of a refugee under the 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 officials). 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 screening decisions). 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. CONCLUSION 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 ofnonrefoulement.25 9 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 of non-refoulement). 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. 104. 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.

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Josh Briggs. Sur Place Refugee Status in the Context of Vietnamese Asylum Seekers in Hong Kong, American University Law Review, 2018,