A SOLUTION TO THE VIETNAMESE MIGRANT ISSUE

DISCUSSION PAPER


1. AIMS AND CONCERNS OF THE VARIOUS INTERESTS INVOLVED

The Hong Kong Human Rights Monitor and other human rights groups

  1. The Hong Kong Human Rights Monitor's main concerns relating to the Vietnamese migrants are that their detention is :-

  1. unlawful;
  2. inhuman.

  1. These issues are linked in that it is the Monitor's view that it is the extreme length of the detention in very poor conditions which makes it unlawful, and that this is particularly clearly the case in relation to detained children. Full details of the legal arguments are set out in the enclosed text of a speech delivered recently by the chairman of the Monitor at Hong Kong University. The issue of the length of the detention is about to be considered by the Judicial Committee of the Privy Council. The Monitor would like to know what contingency plans the Hong Kong Government is making or considering for the event that the Privy Council's decision is against it.
  2. A further issue is that there is evidence from individual cases handled by members of the Monitor that in some cases - although probably a minority - individuals have been wrongly screened out.
  3. The Monitor believes that these views are broadly shared by other human rights groups and groups set up to assist the Vietnamese.
  4. Hong Kong citizens anxious to see the detainees removed from Hong Kong

  5. The main concerns of those pressing for speedy removal of the Vietnamese would appear to be:-

  1. the expense of maintaining the camps;
  2. fear that any relaxation of the Government's present policy will lead to a further influx of boat people from Vietnam;
  3. a belief that a high proportion of those in the camps are criminal or undesirable elements who do not deserve assistance and/or are a threat to the Hong Kong community.

Hong Kong Government Policy

  1. Hong Kong Government policy appears to be dominated by the following considerations :-

  1. fear of a further influx from Vietnam;
  2. the wish to complete the return of those previously screened out before 30 June 1997, in accordance with previous statements of intent, and as pressed for by the People's Republic of China;
  3. the wish to comply with obligations entered into as part of the Common Plan of Action (currently under review in Bangkok).

United Nations High Commissioner for Refugees

  1. Representatives of the United Nations High Commissioner for Refugees have stated publicly that they do not regard the screened out detainees as refugees and do not wish to devote any further resources to dealing with them.
  2. The representative of UNHCR in Hong Kong, Mr Assadi, has stated on a number of occasions that he does not regard the present Hong Kong policy of keeping the detainees in closed camps as necessary.
  3. United States

  4. A number of influential American politicians have called for a final rescreening of the Vietnamese boat people in the various countries of first asylum. One proposal is that they should return to Vietnam and be rescreened there. American views in an election year are likely to remain fluid.
  5. Correctional Services Department

  6. The Correctional Services Department has a particular interest apart from the wider policy of the Hong Kong Government as a whole. Its staff are responsible on a day to day basis for guarding and administering the camps, and for much of the work of carrying out forced repatriation exercises. This work is often unpleasant and sometimes dangerous.

  1. VALIDITY OF THE CONCERNS OF THE VARIOUS PARTIES

  1. The Human Rights Monitor accepts that a further influx of boat people is highly undesirable for several reasons. Firstly there is the obvious pressure on resources in Hong Kong. Secondly there is the danger for the individuals involved and likelihood of their exploitation by those arranging their voyage. Thirdly the Monitor accepts that it is likely that if there were such an influx in the near future, under present conditions in Vietnam, few of those arriving would be likely to fall within the international legal definition of a refugee. The Monitor therefore accepts that changes in policy should be such as to discourage any such influx of people.
  2. However the Monitor considers that the conditions in the camps and the length of detention of many of those detained are such that they cannot be excused or condoned in any circumstances. It is no answer to say that the persons concerned could go back. Firstly not all of those who are in the camps will be accepted back by Vietnam. Secondly many of those in the camps are children. Thirdly some of those screened out are almost certainly genuine refugees. It would be a bold claim to suggest that having screened thousands of individuals not a single mistake has been made that has not been rectified. Fourthly and most importantly, even in relation to those adults who are really not refugees and could probably be accepted for return to Vietnam, it is not acceptable either in moral terms or in terms of international law to pressure them by deliberately keeping them in conditions which breach basic human rights norms.
  3. Paradoxically the detention of the detainees in closed camps makes physical enforcement of their return to Vietnam harder. If they were living in the community they would generally not be in a position to resist a decision that they must now leave. A minority might be able to hide, but not very many for very long. It is only in closed camps that a spirit of mass solidarity between the detainees leads to pitched battles and injuries (and may well lead to deaths in future of either inmates or Correctional Services Department staff if existing policies continue).
  4. The Monitor does not accept the view that the detainees are bad people who would have a damaging effect on the community if they were allowed out of the camps. Much of the supposed hostility of the Hong Kong population is based on ignorance and lack of contact, fuelled by occasional sensational and horrific events such as the Shek Kong fire. To this extent it can be expected to dissipate if there is more contact. It should be borne in mind that many of the detainees are ethnically Chinese and to that extent are not ethnically different from the majority Hong Kong population. It should also been borne in mind that the experience of long term detention camps around the world and through history is that they bring out the worst in human nature and that bad people obtain disproportionate influence in them. There is no doubt that Vietnamese criminal gangs exert influence in parts of the Whitehead Detention Centre. However this does not mean that the majority of inmates, if permitted to lead a normal life, would wish to continue to associate with such people or live like them.
  5. The Monitor would agree with those who wish to curb the costs of detention. However the simplest way of doing this would be by abandoning a policy of high security. Low security establishments are invariably much cheaper to run.
  6. The Monitor does not consider that the screening process and first asylum policy laid down under the Comprehensive Plan of Action merit retention. The process is objectionable in principle as it is racially discriminatory. There is no reason why a person claiming refugee status should be subject to a different regime if they are Vietnamese (or Laotian or Cambodian), than if they happen to be Indonesian or North Korean, thereby gaining a privilege of being considered for onward resettlement in a third country which they would not normally be accorded under international refugee law. In addition it is doubtful how much extra protection against wrongful refusal of refugee status the slow and lengthy screening process in the camps gives as compared with requiring people of other nationalities to provide prima facie evidence at the port of entry. If it did give extra protection and such protection were necessary, the procedure should be extended to asylum seekers of any nationality. If it does not give such protection it should not be retained.
  7. Some human rights activists oppose abolition of the first asylum policy on the grounds that to do so would damage Hong Kong's image overseas. We do not believe that this is the case. Part of the background to the first asylum policy is that the International Convention on Refugees has never been formally extended to Hong Kong by the United Kingdom, although in reality it is applied by the Hong Kong Government to asylum seekers not within the CPA. If abolition of first asylum did damage Hong Kong's image (which we are unconvinced of), any such damage could be counteracted by a formal statement that Hong Kong will apply universally the provisions of the International Convention on Refugees.

  1. CHANGES SINCE 1988

  1. Since 1988 Vietnam has opened up its economy, increased its links with other countries in the region and joined ASEAN. As part of this opening up, Hanoi and Ho Chi Minh City are now linked to Hong Kong by regular air services. In addition there is a general recognition now which did not exist to the same extent as in 1988 that many new arrivals are economic migrants who, however worthy their motives in seeking to improve their lot and that of their families, are not refugees.
  2. Because of these changed circumstances it would now be both practical and acceptable to institute a new regime for any new arrivals of boat people, whereby they were subject to an initial interview, and if this did not reveal prima facie evidence of persecution, they were returned immediately to Vietnam on the next commercial flight, just as if they were asylum seekers from a non CPA country. Power exists under the present Immigration Ordinance to require an airline (or ship) to remove any person from Hong Kong who has been refused entry, even if they were not brought to Hong Kong by that airline (or ship) (Immigration Ordinance, Cap. 115, Section 25(2)).

  1. A POSSIBLE PACKAGE OF MEASURES DESIGNED TO MEET THE CONCERNS OF ALL PARTIES

  1. A package which might meet the concerns of all parties set out above might consist of the following elements :-

  1. End first asylum while announcing extension of international refugee law to all asylum seekers;
  2. Announce and implement new policy of returning any new arrivals unless they can show prima facie evidence of persecution;
  3. End policy of high security closed camps for those already in detention.

  1. The nature of the regime for those now detained in the camps after a closed camp policy was ended would require detailed planning. However some of the considerations might be as follows :-

  1. if the USA Government or US agencies were willing to undertake a rescreening exercise this would cost Hong Kong nothing, would lead to some of the detainees being resettled in the United States, and should be welcomed;
  2. as to those still screened out (or all detainees if no such rescreening occurs) detainees might be given the option of returning now to Vietnam, or of taking a chance as to what might happen to them after 30 June 1997;
  3. detainees should be encouraged to seek employment in types of jobs where they would not be likely to take jobs from locals and might create additional employment for them. This approach has been adopted with considerable success at the First Asylum Camp at Puerto Princessa in the Philippines, which is open during the day, and where detainees run numerous Vietnamese restaurants, Vietnamese bakeries, and jewellry shops in the adjacent city;
  4. those who could not obtain employment in approved occupations would need to be provided with basic subsistence support. However this is already being done at present, and overall the new regime would represent considerable cost savings. A part of those savings should however be used to improve some of the worst features of the Whitehead camp such as the showers over the open latrines and the inadequate schooling.

Paul Harris

15.1.96

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1996 (c) Hong Kong Human Rights Monitor