TNAG-0888-FCO40-1098-Refugees-from-Vietnam-in-Hong-Kong-Vietnamese-boat-people-1979 — Page 53

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7 JUN1979

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87.6 Mr Spmons BEAD

MARITIME REFUGEES

1.

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The way in which the legal aspects of this subject have had to be dealt with in the last few days has meant that many points of finer detail have had to be ignored. I would, however, like to mention 2 such points now, just in case they are relevant at some future stage.

2.

First, the obligation in the various conventions deal- ing with the plight of those in distress at sea is to "render assistance" to them, rather than expressly to take the per- sons in distress on board the rescuing vessel. accordingly, no express international obligation under the

There is, conventions we have been referring to to take the refugees on board a rescuing vessel. In practice, of course, to do so might well be the most obvious form of assistance, and in some cases may be the only possible form of assistance. From a purely legal point of view the question whether the action taken by the rescuing vessel is sufficient to fulfil the obligation to give "assistance" will primarily depend on the facts of a particular incident. It could well be that action less than taking the refugees on board could consti- tute "assistance" to fulfil the legal obligation.

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3. The second point is whether the conventions apply at all to the kind of refugee situation which we are now faced with. It is almost certain that those conventions were drawn up without the kind of situation which has now developed being in mind at all: in all probability the negotiators would have been thinking of the more normal kind of shipwreck or other distress at sea. Furthermore, it might be possible to argue that the conventions are not really intended to be applied to a situation in which the refugees put to sea almost with the specific objective of putting themselves in the way of passing vessels, in order to get themselves picked up by those vessels: that is a somewhat different matter from that which occurs when people go to sea in order to reach a particular destination, and by force of circumstances beyond their control find themselves in distress at sea. There may be some political value in these kinds of arguments, but I must say that from a legal point of view I rather doubt whether they would prove of significant value. Nevertheless,

I record them in case, at some future date, it might be thought valuable to look into these matters more closely.

1 June 1979

cc. Miss Wilms durst

Awalls

AD WATTS

LEGAL COUNSELLOR K166

233 3165

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CONFIDENTI