I. SUMMARY AND RECOMMENDATIONS

One hundred and fifty-five years of British colonial rule will come to an end in Hong Kong on July 1, 1997. As agreed in the 1984 Sino-British Joint Declaration on the Question of Hong Kong, the territory will revert to Chinese rule and become a Special Administrative Region (SAR) of China. Even before the changeover, China is increasingly exercising its authority over the territory on a number of issues and has directed, for instance, that all the Vietnamese be cleared from Hong Kong before July 1. Such pressure has spurred the Hong Kong government to redouble its efforts to resolve the Vietnamese situation, which has embroiled the territory in controversy for over twenty years.

On January 3, 1997, the government came one step closer to its goal of evicting the Vietnamese from its territory with the closure of Whitehead Detention Center. The largest of the camps used to detain Vietnamese asylum seekers, Whitehead, which held about 1,700 boat people at the end of 1996, contained 29,000 people at the height of the refugee influx in the aftermath of the Vietnam War. With only about 5,600 asylum seekers left in the territory today,(1) the history of the Vietnamese boat people in Hong Kong has clearly reached a new stage. Refugee Coordinator Brian Bresnihan reaffirmed this view, calling the Whitehead closure "a watershed in the whole Vietnamese migrant saga, signaling the beginning of the end of the problem.(2) While this may indeed be the "beginning of the end, significant concerns regarding detention, repatriation, and the responsibilities of the Hong Kong government and the United Nations High Commissioner for Refugees (UNHCR) have developed in this last phase precisely as a result of the haste to bring this situation to a close.

For the last fifteen years, human rights organizations have focused on the treatment of the Vietnamese asylum seekers by raising questions about the fairness of the procedures used to determine refugee status and by expressing concern about conditions in the camps where they were detained. Those concerns were heightened after an international agreement known as the Comprehensive Plan of Action (CPA) was adopted in 1989 leading to a focus on repatriation back to Vietnam for those deemed not to be refugees. Given the well-documented flaws in the screening process, the focus on repatriation left open the possibility that some genuine refugees would be sent back. Human rights groups also noted that Hong Kong authorities appeared to be deliberately seeing that conditions in the camps deteriorated as a way of "encouraging people to return.

All of these issues came to a head in 1996, due to the scale and intensity of repatriation efforts. With the completion of refugee status determination procedures in March 1995, Hong Kong, like countries throughout Southeast Asia which had participated in the CPA and had given the boat people first asylum, began to shift its energies to clearing the Vietnamese from its camps. Reflecting larger trends in the international protection of refugees, this shift in favor of repatriation as the most desirable durable solution to the "boat people crisis not only exacerbated already intolerable conditions within Hong Kongµs detention camps but also led to violence by both government forces and camp inmates and resulted in security forces using disproportionate force in operations to transfer the Vietnamese to other detention facilities to prepare for the trip home.

While Human Rights Watch/Asia does not, in principle, oppose the policy of closed camp detention, it does uphold principles established by the UNHCR itself which stipulate that as a general rule, asylum seekers should not be detained.(3) Human Rights Watch/Asia remains concerned about the conditions in which the Vietnamese boat people are held in Hong Kong, many of which run counter to UNHCR's own standards. In addition, many involved in the territory's detention facilities, including nongovernmental organizations (NGOs) and Hong Kong government employees, have drawn a link between a general degradation in camp conditions and the emphasis on repatriation. This has thrown into question the ability of the UNHCR and the Hong Kong government to effectively carry out their dual and often conflicting roles of both providing for the welfare of the camp populations and running the repatriation program.

Human Rights Watch/Asia is also concerned by the possibility that some of the 2,300 Vietnamese who as of late February 1997 had not been cleared for return to Vietnam would still be in Hong Kong by July 1. As some of these people are ethnic Chinese who hold passports from Taiwan and others are Vietnamese who fled first to China before entering Hong Kong, their situation may be particularly precarious.

This report updates previous work on Vietnamese asylum seekers in Hong Kong.(4)The experience of Hong Kong's boat people in this final stage offers some insights into the various dimensions of protection and of the adverse consequences of contradictory agendas of international organizations and governments.

Recommendations

In light of the human rights concerns associated with the Vietnamese boat people in Hong Kong, Human Rights Watch/Asia makes the following recommendations:

To the Government of Hong Kong

• The Hong Kong government must fully respect its obligations under the Comprehensive Plan of Action, the 1988 Statement of Understanding signed with the UNHCR, and the International Covenant on Civil and Political Rights (ICCPR) to respect basic human rights, and make every effort to improve the conditions of its Vietnamese detention centers.
• The Hong Kong government should immediately end the detention of those asylum-seekers that the government of Vietnam has refused to take back and make provisions either for their resettlement in other countries before July 1 or for their integration into the Hong Kong community on the basis of permanent residence.
• To fully uphold its responsibilities under the Convention on the Rights of the Child, which was extended to Hong Kong by the government of the United Kingdom in September 1994, the Hong Kong government must protect the rights of Vietnamese children in the territory and ensure that secondary schooling, which was recently reinstituted in the camps after a one-year suspension, continues to operate as long as there are children who need it.
• As a matter of urgency, the Hong Kong government must immediately address complaints of hunger in the detention camps by investigating abuses of the food distribution system and by exploring other systems, such as the food ticket system utilized in the voluntary repatriation centers, in which the distribution of food rations is directly controlled and supervised by Correctional Services Department personnel.
• In the interest of promoting press freedom, government accountability and the fair and humane treatment of Vietnamese boat people, the Hong Kong government should remove all restrictions on the press and provide journalists with free access to all Vietnamese detention facilities. In addition to allowing admission to the camps, the government should permit members of the press to speak to and interview Vietnamese inmates.
• The Hong Kong government should also conduct an evaluation of its administration and management of the Vietnamese boat people from the beginning of the outflow from Vietnam in 1975 to the present. Such an evaluation should include a critical examination of the methodologies adopted by camp management and also an independent inquiry into allegations of the employment of Vietnamese gangs by Correctional Services Department staff.
• In accordance with the repeal of Part IIIA of the Immigration Ordinance (the section pertaining to Vietnamese refugees), the Hong Kong government should establish a comprehensive policy to unify its treatment of all asylum seekers. In formulating such a policy, the government should ensure that the 1951 Refugee Convention and the 1967 Protocol forms the basis of a clear and transparent system which guarantees asylum seekers a safe landing in Hong Kong which allows them to exercise their right to seek asylum and a fair screening for refugee status. The Hong Kong government should also request that China, which is itself a signatory to the Refugee Convention, extend both documents to the Hong Kong Special Administrative Region (HKSAR). Finally, the government should request that the restrictions in Hong Kong concerning the application of the ICCPR and the Convention on the Rights of the Child be removed, and that interpretation of both treaties be extended to include immigration and asylum cases.

To the United Nations High Commissioner for Refugees

• Given the noted shortcomings of the screening procedure and the subsequent danger of refoulement, the UNHCR should exercise its mandate authority and review the cases of Vietnamese asylum seekers with compelling refugee claims.
• In the interest of maintaining trust and cooperation with NGOs, the U.N. agency should respond quickly to requests for information or other inquiries submitted by such groups.
• To address concerns among NGOs and Vietnamese asylum seekers regarding the effectiveness of the UNHCR's protection of returnees, the agency should establish an independent evaluation team to monitor the activity and performance of its monitors in Vietnam. UNHCR should also be held to its own description of its mandate to "monitor the status of returnees in the country of origin and intervene on their behalf if necessary."(1)
• The UNHCR should institute more transparency in the monitoring of returnees to Vietnam by publishing periodic reports on its monitoring activities and by making the policies and methodologies which guide its monitoring activities in Vietnam available to the public. In addition, should UNHCR in the country of origin learn of human rights abuses which may be relevant to potential returnees, the agency should transmit such information to those returnees.
• The UNHCR should also explore ways to make its protection role more effective through cooperative work with independent nongovernmental organizations who are not funded by the UNHCR. In addition to considering joint monitoring projects with such organizations, the UNHCR should engage in dialogue with nongovernmental groups to examine new strategies for monitoring and refugee protection.

To the international community

• In the spirit of the burden-sharing arrangement set forth by the Comprehensive Plan of Action, the international community should make every effort to find resettlement in third countries for the refugees remaining in Hong Kong. To facilitate such efforts, Human Rights Watch/Asia calls for a special meeting to be held before July 1, 1997 of CPA member countries and states which are party to the Statelessness Convention to discuss the resettlement of Vietnamese refugees and the protection of stateless persons among the Vietnamese boat people population.

(1)Of this number, approximately 1,000 people are considered "post-CPA cases as they arrived in Hong Kong after June 15, 1996 and the expiration of the Comprehensive Plan of Action (CPA). Although they are placed in detention by the Hong Kong government and will be sent back to Vietnam through the orderly repatriation program, they will not undergo screening for refugee status. It should be noted that the majority of these recent arrivals are looking for work and do not seek asylum.

(2)Lucia Palpal-latoc, "Whitehead Closure ?Beginning of End' for Boat People Saga, Hong Kong Standard, December 6, 1996.

(3)UNHCR guidelines on the Detention of Asylum Seekers, UNHCR, published in Detention of Asylum Seekers in Europe (Geneva: United Nations, 1995) Vol.1, No.4.

(4)See Asia Watch (now Human Rights Watch/Asia), "Indefinite Detention and Mandatory Repatriation: The Incarceration of Vietnamese in Hong Kong,A Human Rights Watch Short Report, vol. 3, no. 24, December 3, 1991; and Asia Watch, "Refugees at Risk: Forced Repatriation of Vietnamese from Hong Kong, A Human Rights Watch Short Report, vol. 4, no. 21 August 2, 1992).