TNAG-1800-FCO40-2560-Hong-Kong-Vietnamese-refugees-principle-of-first-asylum-1988 — Page 325

Mr

Millett,

UND

1. HILLD 243/11

FER 1988

Reference.........................................

n

ASYLUM IN HONG KONG

1.

We shall have to feel

This our way cautiously towards the formation of a definite policy. will require a much fuller assembly of the facts and assessment of

I would not want you to international practice, including our own. regard this minute as more than a first contribution to that process.

This is an important and sensitive question.

2. I am not particularly impressed by the first part of the UNHCR paper,

As you dealing with what one might call the general legal question. point out, neither the 1951 Convention on the Status of Refugees nor the 1967 Protocol thereto applies to Hong Kong, whereas most of the texts cited in the paper are of a non-binding character, some of them being not even of a universal character. The sloppiest legal reasoning is the attempt, in paragraphs 3 and 4, to derive from Article 4(2) of the Covenant on Civil and Political Rights, a so-called "minimum standard of humanitarian treatment" requiring the temporary admission of refugees. In reality, none of the provisions referred to in Article 4(2) (ie those which are not subject to derogation even in time of national emergency) have the slightest bearing on the particular question of the admission of refugees. In any case, generalised inductive arguments of this kind could not stand in the face of Articles 12 and 13 which deal directly with the residence and freedom of movement of aliens. Moreover, the paper begs the whole question of when a person becomes entitled to the guarantees of the Covenant a question which Article 13, for example, answers explicitly (in the case of protection or expulsion) by limiting its scope to aliens "lawfully in the territory of a State Party"; in other words, Article 13 leaves no room for any argument that it applies until a decision has been taken to admit an alien, and carries the necessary implication that that decision is one which lies within the discretion of the authorities of the receiving State.

3.

I have looked into some of the books. Goodwin-Gill (for a considerable period of time a legal officer in the UNHCR), writing in 1977, refers to the humanitarian considerations, but goes on to say that it is nevertheless "still to be doubted whether there is any rule which obliges States to

He adds that even the 1951 Con- admit those fleeing from persecution". vention (as amended by the 1967 Protocol) "does not guarantee a right of entry in so many words". Grahl-Madsen says that "whereas States have an undeniable right to grant territorial asylum at will, subject to

as a rule under no international certain qualifications, they are - obligation to grant asylum".

4.

What

The underlying rule therefore seems to me to be clear enough. is not so clear is the resultant of the tension between it and the principle of non-refoulement. If that principle is to be understood as precluding only the positive handing back of a refugee to a State of

If, on the other hand, persecution, then there is no major difficulty.

it is argued to have a much wider application to large flows of refugees, whe re there is in practice no other State willing to receive them, and mere rejection at the frontier is itself contrary to the dictates of humanity, it becomes very difficult to maintain alongside this principle

None of the absence of an obligation to admit refugees on some basis.

However, Grahl-Madsen, the books are particularly clear on this point.

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