I C Orr Esq
HONG KONG
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United Kingdom Mission
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RECEIVED IN REGISTRY NO. 51
2 0 MAY 1981
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Date
1 May 1981
See Es
THE REFUGEE CONVENTION AND PROTOCOL: CHINA AND HONG KONG
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1. In your letter of 31 March to Christopher Long you asked whether we could give any further indicatation on the Chinese attitude. have spoken to Casella. He told me that the UNHCR Representative in Peking discussed the question with the international law department of the MFA who were sympathetic to the idea. The Chinese are serious and in due course a proposal for accession will be submitted to the Standing Committee of the National Assembly. Casella did confide that the Chinese realised that the Convention in fact committed states to very little.
They could always find a reason not to grant asylum, and .with the exception of the Vietnamese whom China accepts, it was
hard to imagine any other people wishing to seek asylum in China. Accession would be therefore a useful propaganda gesture for the Chinese.
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2. I should like to comment however on some of the other points raised in your letter. Whilst you do not disagree with any of the arguments suggested in my minute of 28 January which would tend to support a case for reconsideration of whther the Convention and Protocol should be extended to Hong Kong, you do state that there are clear and decisive arguments against extension. You cite one of those arguments. That is that Hong Kong would have been obligated to treat people entering H.K. illegally from China as refugees. But the fact is that the prerogative of determining refugee status rests with states (not UNHCR) and you recognise this in the example given in para 4 of your letter. The U.K. has jealously guarded this prerogative, although some countries (i.e. Belgium) have decided to exercise it in collaboration with the UNHCR branch office. It would therefore not seem to be a valid argument to say that H.K. would be obliged to treat illegal entrants as refugees. It would be helpful to know what are the other clear and decisive arguments you have in kind.
3.
You also say that UNHCR are doubtless aware of the difficulty extension of the Convention to Hong Kong would cause them. I should be interested to know what those difficulties are (I clearly cannot raise this subject with them). At first sight I should have thought that UNHCR would welcome such an extension.
4. There are three points that you make about possible Chinese accession on which I should be grateful for some clarification.
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Since 1979 UNHCR have undertaken a substantial programme of assistance to China ($12m in 1980 and $8 million proposed for 1981). You suggested that China might consider accession in order to attract greater funds. As far as UNHCR and the Executive Committee which approve these programmes are concerned, it is clear that assistance is in no way linked to whether or not a state is a party to the Convention. There are many states with large UNHCR assistance programmes which are not parties to the Convention. I am sure 'the Chinese Mission here understands this perfectly.
5. The second point is that in para 4 you say that you are certain that China would wish to enter a reservation to ensure that people leaving China for Hong Kong were somehow excluded. But this would be a matter for Hong Kong/UK, not for China, as one state cannot prevent another state from granting refugee status. Furthermore once a state has determined refugee status it is usual practice for another to recognise that determination although there is of course no obligation on the third state to grant asylum to such refugees. The third point is your suggestion that China might seek to exclude Chinese nationals claming political asylum while in third countries, but this simply cannot arise under the Convention. No state can put an embargo on its own nationals from seeking asylum in another country.
6. There is perhaps a further point that should be taken into consideration. Para 3 of the Territorial Application Clause (Article 40) of the Convention says that each state "shall consider" extending the Convention to dependent territories. Para 3 states:
"With respect to those territories to which this Convention is not extendea at the time of signature. ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary, for constitutional reasons, to the consent of the governments of such territories."
There is therefore an obligation on the U.K. to consider extension on behalf of the dependent territories, though I would not for a moment suggest there was any pressure for us to do so. If it is decided to reopen the question of extension on behalf of Hong Kong it would probably be sensible to sound out the Chinese attitude in Peking. I did not know that the matter had been considered in 1978. Quite apart from the political pros and cons it would be interesting to know how FCO legal advisers then viewed the question.
cc: P Morrice Esq, HK&GD
I W Mackley, Esq, UND RP Flower Esq, SEAD R N Peirce, Esq, Peking RP Margolis Esq, Paris
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DR Snoxell
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* OUR REF.:
CR 3/4821/52
* YOUR Ref.:
C W Long Esq
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UNS 243/23.
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AKK-022/10 13/u
RECEIVED IN REGISTRY NO. 51
20 MAY 1981
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31 March 1981
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REFUGEE CONVENTION AND AND CHINA
CI ON HONG KONG
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Please refer to your letter of 13 February to David Wilson together with David Snoxell's minute of 28 Januar enclosed with that letter and paragraph 4 of his minute of 19 March (I am now copying these to Bob Peirce in Peking and Richard Margolis in Paris).
2.
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At the start of the 1978 influx of refugees from Vietnam we dusted out our papers on Hong Kong's position vis a I have vis the 1951 Refugee Convention and the 1967 Protocol. not referred back to the papers in making the following comments but I remember clearly that the possibility of UK ratification
The being extended to Hong Kong was considered and rejected. reason for this was not spelt out in the papers I consulted. However, the primary consideration was that neither the UK nor the Hong Kong Government would have wished to be obligated under an international convention to treat people entering Hong Kong illegally from China as refugees. I imagine that the UNHCR would be able and willing in terms of the definition of 'refugee' in the Convention to treat most illegal immigrants into Hong Kong from China as falling out with their interests and responsibilities. Nevertheless, there would always remain a grey area of interpretation ready to be exploited by non- Governmental organizations in Hong Kong, the UK and elsewhere. There are, therefore, clear and I believe decisive arguments against the UK's ratification being extended to cover Hong Kong.
I am not, therefore, surprised that Casella did not raise the question of the Convention being extended to Hong Kong; UNHCR are doubtless also avare of the difficulty this would cause them. It was interesting, however, to learn that he thought China might accede to the Convention. We would(22 be interested to know the level at which this possibility was discussed during his recent visit to China; and also whether the subject was raised on the initiative of UNHCR or the Chinese. It seems plausible that China might consider joining if she believed that by doing so she could expect to enjoy much greater financial support from UNHCR in dealing with the problem of Vietnamese refugees in China. However, such an expectation strikes me as wildly optimistic, given the state of UNHCR finances and the sensitivity of African countries to the large
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