Can the Boat People Assert a Right to Remain in Asylum?

Can The Boat People Assert A Right To Remain In Asylum? World political reaction to the Southeast Asian refugee crisis has not asserted the refugees' human rights under international law. As a result most of the refugees lack security from forcible return to the conditions they fled. They would have that security if the world powers act instead to implement non-refoulement, an established moral principle that arguably has attained the status of customary internationallaw. The summer of 1979 may go down in history as the Summer of the Boat People1 because of the hundreds of thousands of Indochinese refugees 2 who fled Vietnam, Laos, and Kampuchea 1. "Boat People" herein, in accordance with the current popular usage, means refugees leaving Indochina by sea. The seaborne Haitian and Cuban refugees arriving in the United States also could be termed boat people, but their legal problems are somewhat different. See text accompanying notes 139-45 infra. The Indochinese exodus has continued for years on a relatively small scale: as of 1975 about 5,400 persons had left the area by small boat, and another 2,000 took this route in 1976. Comment, The Dilemma of the Sea Refugee: Rescue Without Refuge, 18 HAnv. INT'L L.J. 577 n.1 (1977). By contrast, a refugee assistance organization estimated in July 1979 that the departure rate for May and June had been 118,000 persons per month, 50% of whom were lost at sea. Press release by Refugees International, Tokyo (July 1979). The thousands of refugees who fled overland from Kampuchea into Thailand in the .fall of 1979 have approximately the same legal status as those who arrived by boat. For an overview of the causes and effects of that migration, see Deathwatch: Cambodia, TIME, Nov. 12, 1979, at 42. 2. "Refugees" herein means international political refugees, i.e., persons forced to leave or stay away from their state of nationality because of political events making their continuance there impossible, and who have taken refuge in another state without acquiring a new nationality. See S. SINHA, ASYLUM AND INTERNATIONAL LAW 95-105 (1971). This discussion does not apply to economic refugees except insofar as their economic deprivation is politically motivated. See note 144 infra (poverty in Haiti as persecution). The situation of the Indochinese refugees is complicated by economic scarcity. As a result of years of warfare, all three of the Indochinese states have little food to go around. In some parts of Kampuchea the scarcity amounts to famine, and it is reasonable to say that the majority of the ethnic Kampuchean refugees left because of this economic deprivation. See Deathwatch: Cambodia, supra note 1. The need for asylum, however, is predicated on the repressive measures awaiting the refugees on their return, not on the factors that motivated their leaving. In regard to the Kampuchean refugees, there is evidence that they face persecution on their return simply because they left, even though they left for nonpolitical reasons. See note 19 infra. The motivation of the ethnic Chinese Boat People can be characterized in a sense as economic. Chinese in Vietnam largely follow mercantile occupations, and a merchant 176 19801 Asylum for Boat People? 177 in leaky, overcrowded boats, desperately seeking temporary asylum3 from politically and ethnically motivated persecution 4 in their native lands. For most, the long sea voyage was a terrifying ordeal, and many thousands did not survive it.5 Even for those class has no place in a socialist society. Interview with Ann Fagan Ginger, visiting professor, University of Puget Sound Law School, in Tacoma (Oct. 28, 1980). There is evidence, however, that the repression they fled, although in part economically implemented, has also been directed against them as a people and implemented through social persecution. See note 19 infra. No disinterested tribunal has determined the exact nature of the repressive measures that impelled the Boat People to risk their lives at sea or the certainty that those measures still await them. The notorious events of the past 21/2 years, however, raise a reasonable question regarding their safety if they return home. 3. "Asylum" may mean a place or territory where one is not subject to seizure by one's pursuers, or it may mean protection or freedom from such seizure. The latter sense is the usual meaning in international law. II A. GRAthtL-MADSEN, THE STATUS OF REFUGEES IN INTERNATIONAL LAw § 161 (1972). When a state has difficulty granting asylum, as in the case of a mass influx, it may admit persons only temporarily and then, when a chance arises for resettlement elsewhere, advise them to leave its territory or expel them if necessary. Id. § 223. The United Nations codified such provisional or temporary asylum in the GAOR Declaration on Territorial Asylum of 14 December 1967, art. 3, § 3, G.A. Res. 2312, 22 U.N. GAOR, Supp. (No. 16) 81, U.N. Doc. A/5217 (1967). 4. "Persecution" is an imprecise term of art in United Nations treatment of refugees. The distinction between persecution and mere discrimination is an evidentiary one and difficult to draw without bias. See text accompanying notes 142-48 infra. The more liberal school of commentators holds that any measure "in disregard of human dignity" may be persecution. Weis, The Concept of the Refugee in InternationalLaw, U.N. Doc. HCR/INF/49, at 22 (1961). See also J. VERNANT, THE REFUGEE INTHE POsT-WAR WORLD 8 (1953). The more restrictive school limits the term to deprivation of life or physical freedom, including protracted forced unemployment. K. ZINK, DAs AsYLREcHT IN DEE BUNDESREPUBLIK DEUTSCHLAND NACH DIM ABKOMMEN VOM 28. JuLi 1951 0BER Dm RECHTSSTELLUNG DEE FLOCHTLINGE UNTER BESoNDERER BEROCKSICHTIGUNG DER RECwTsSPRECHUNG DEE VERWALTUNGSGEcwm 74 (1962), paraphrasedin I A. GRAHL-MADSEN, supra note 3, § 82. For United States judicial interpretations consistent with the restrictive school, see Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961) ("The denial of an opportunity to earn a livelihood ... is the equivalent of a sentence to death by means of slow starvation . . . .") and Blazina v. Bouchard, 286 F.2d 507, 509 & n.2 (3d Cir. 1961) (public scorn and denial of government employment insufficient to constitute "physical persecution" on religious grounds). See note 19 infra. See generally I A. GRAHL-MADSEN, supra note 3, §§ 80-87. 5. Many boats, unfit for a sea voyage, foundered in the international waters of the South China Sea. Refugee aid workers estimate that at the height of the exodus, up to 70% of the boats did not finish the trip. Lewis, A Crime Against Humanity, N.Y. Times, June 14, 1979, § A, at 29, col. 1; U.S. to Double Its Refugee Quota to 14,000 a Month, id., June 29, 1979, at 1, col. 3. Many drownings occurred because commercial ships in the zone ignored vessels in distress. U.S. Is Collecting Refugee Reports on Mistreatment by Malaysia's Navy, id., July 26, 1979, at 6, col. 3. The settled rul (...truncated)