TNAG-1972-FCO40-2805-Hong-Kong-Vietnamese-refugees-repatriation-1989 — Page 17

Bount

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See Handbook, supra note 2, para. 61. Persecution as defined in the Convention must occur on race, religion, nationality, political opinion, or membership in a particular social group. See Arti the 1951 United Nations Convention Relating to the Status of Refugees, amended by 1967 Protocol Relating to the Status of Refugees.

16. SRV Criminal Code, Articles 85 and 88, respectively, as reprinted in J. Diller, "In Search of Asylum: Vietnamese Boat People in Hong Kong" (IRAC, 1988).

17. Basler, "75 Boat People Flown Home", The New York Times, March 3, 1989, at A3. See also Macklin, "Boat People Returned to Homeland," South China Morning Post, March 3, 1989.

18. See note 15 above and accompanying text.

19. The CPA's more expansive provision echoes the 1980 Manila Declaration, which recommends "the consideration of a regional [Asian] instrument or a set of principles relating to the specific problems of refugees in Asia as a complement to the United Nations Refugee Convention and Protocol." See Manila Declaration, supra note 1, para. 13.

20. Other international instruments are relevant to the human rights screening determination by analogy. These include, inter alia, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the 1969 American Convention on Human Rights, the 1969 Organization for African Unity Convention on Refugee Problems in Africa, and the 1984 Cartagena Declaration on Refugees. Both of the latter documents contain definitions of the term "refugee" which are more expansive than the 1951 United Nations Refugee Convention and Protocol. In addition, proclamations of growing international consensus bear upon these rights, including the Draft Declaration on Freedom and Non-discrimination in respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Country, U.N. Doc. E/CN.4/Sub.2/1988/35/Add.1 (1988), and the Resolution on Conscientious objection to military service found in the Draft Report of the Commission on Human Rights, U.N. Doc. E/CN.4/1989/L.11/Add.8 (1989) at 5 (Resol. 1989/59).

21. The factual situations of human rights infringements noted in the text violate, inter alia, the following rights:

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right to leave and return freely [ICPR Art. 12, UDHR Art. 13(2)}

right to work of free choice (UDHR Art. 23, IESCR Art. 6)

right to education, with higher education equally accessible to all (UDHR Art. 26, IESCR Art. 13)

no arbitrary arrest or detention (UDHR Art. 9, ICPR Art. 9)

right to equal protection under the law (UDHR Art. 7, ICPR Arts. 14, 26)

no torture, cruel, inhuman or degrading punishment (UDHR Art. 5, ICPR Art. 7)

right to life, liberty and security (UDHR Art. 3, ICPR Arts. 6, 9)

right to freedom of thought, conscience and religion (UDHR Art. 18, ICPR Art. 18) right to freedom of opinion and expression (UDHR Art. 19, ICPR Art. 19)

right to free and secret voting [ICPR Art. 25(b)]

22. 34 EXCOM Conclusions [No. 29(h)], supra note 2, p. 65 (1983).

23. Legal procedures administered in good faith and without abuse of official power are required in similar situations. Where an alien lawfully present in a territory can show that the legal procedures used to expel him or her were carried out in bad faith or with an abuse of discretion, explusion or deportation is prohibited under the ICPR. See Maroufidou v. Sweden (R. 13/58) U.N. H.R. Comm'ee 36, 160, 36 U.N. GAOR Supp. (No. 40) (1981).

24. See Handbook, supra note 2, paras. 190, 208-11, 213-17.

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