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1994-05-02
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<text>
<title>
Hong Kong
</title>
<article>
<hdr>
Human Rights Watch World Report 1992
Asia Watch: Hong Kong
</hdr>
<body>
<p>Human Rights Developments
</p>
<p> Unprecedented international scrutiny of human rights in Hong
Kong took place in 1991, brought on by the enactment of a local
Bill of Rights, the report of the United Kingdom to the U.N.
Human Rights Commission, and visits by human rights delegations
such as one sent by the International Commission of Jurists.
The continued incarceration of nearly sixty thousand Vietnamese
asylum-seekers stood out as Hong Kong's most glaring and
intractable human rights problem. It was compounded by the
resumption of forced repatriation before the government had
rectified flaws in the procedures for identifying true refugees
and ensured that adequate safeguards were in place to protect
those who returned. Hong Kong's Bill of Rights promised to be
a powerful new tool for challenging oppressive colonial laws
and government actions, but its efficacy was hobbled by various
restrictions, notably a period of immunity for certain of the
government's police powers. The crisis of confidence in Hong
Kong's future deepened as both the British and local
governments compromised on the principle of Hong Kong's autonomy
to accommodate China.
</p>
<p> As of year's end, approximately 59,000 Vietnamese were being
held in closed detention centers awaiting either evaluation of
their claims to refugee status or repatriation to Vietnam. The
relevant immigration ordinance sets no precise limit on the
amount of time that Vietnamese may be detained. Waits of over
two years are normal, and some Vietnamese, particularly
unaccompanied minors, have been waiting since 1988 to undergo
the first "screening" of their claims.
</p>
<p> Former residents of Vietnam who came to Hong Kong after
having spent some time in China also face indefinite detention.
These suspected "ex-China" Vietnamese are considered to have the
same legal status as Chinese migrants, who under Hong Kong law
are not entitled to any consideration of their refugee status.
But unlike Chinese migrants, who are usually repatriated to the
mainland within hours of interception in Hong Kong, these
"ex-China" Vietnamese must await identification and acceptance
by China as former residents, a wait that can take years unless
the Hong Kong government intervenes.
</p>
<p> While illegal under international law, the distinction in
Hong Kong's law between the treatment of Vietnamese and Chinese
migrants is a product of political realities. Hong Kong's
territory would be flooded with arrivals from China if it did
not enforce a stringent return policy, and China would not
countenance Hong Kong openly "screening" Chinese citizens for
refugee claims. On the other hand, in response to international
pressure, Hong Kong has maintained first asylum for Vietnamese
boat people, and agreed to conform its policies to the 1951
Refugee Convention and its 1967 Protocol. Britain, which is a
party to the Refugee Convention, did not extend its treaty
obligations to Hong Kong. It did, however, extend its
obligations under the International Covenant on Civil and
Political Rights to its colony. The use of racial categories to
distinguish between the rights of immigrants under Hong Kong's
law violates Article 26 of the Covenant, which states that all
persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. Hong Kong,
apparently recognizing this difficulty, excepted its immigration
laws from the application of its local Bill of Rights, which
reproduces this guarantee. The Bill of Rights aside, the
Covenant, with its prohibition against legal discrimination on
the basis of national origin, still applies to Hong Kong. (The
1985 Joint Declaration between the governments of China and
Britain, a treaty which lays out the blueprint for Hong Kong
after the transition to Chinese sovereignty, says that the
provisions of the Covenant "as applied to Hong Kong" shall
remain in force. Although Britain made certain reservations in
the application of the Covenant to Hong Kong, Article 26 is not
among them. However, Britain did not extend the protections of
the Covenant's 1966 Optional Protocol to Hong Kong, which would
have provided a forum (the United Nations Human Rights
Committee) for raising the issue of a racially discriminatory
immigration policy.) Moreover, quite apart from Britain's
failure to extend treaty refugee guarantees to Hong Kong, the
customary law prohibition against refoulement returning a person
to face political persecution effectively mandates screening of
potential refugees even among Chinese aliens.
</p>
<p> Conditions in the detention centers for Vietnamese asylum-seekers are more squalid and dangerous than those of local
prisons. Inmates, who are referred to by number rather than
name, live behind barbed wire, in corrugated metal huts lined
by rows of triple bunk beds, or in some cases, in large tents.
Both the internal and external living space per inmate falls
well below international standards. (Anne Wagley Gow, Protection
of Vietnamese Asylum Seekers in Hong Kong: Detention, Screening
and Repatriation (June 1991) working paper submitted to the
U.N. Economic and Social Council, Commission on Human Rights,
and Subcommission on Prevention of Discrimination and Protection
of Minorities), p. 8. The exception is Tai Ah Chau Detention
Centre, in which residents have access to an entire island
during the day.) Little opportunity or space was available for
work, education or exercise. The police or the correctional
services department manage most detention centers and enforce
their rules, including provisions for limiting visits ("subject
to orders of Superintendent"), censoring mail (may be read "for
good cause" or restricted "for good cause") and punishing
escape, vandalism, disobedience and disrespect. However,
assault, rape and substance abuse within the camps remain
serious problems, and Vietnamese make periodic allegations of
abuse by guards and police. The government strictly controls
press access to the camps and discourages stories on the plight
of particular asylum-seekers.
</p>
<p> Families and minors have suffered the effects of these
conditions especially severely. Camp workers report a
widespread breakdown in family relationships and a rise in child
abuse and juvenile delinquency. (Refugee Concern Hong Kong,
Defenseless in Detention, June 14, 1991.) Several thousand
unaccompanied minors, the most vulnerable inmates, live in these
conditions the longest. Although the special procedures for
evaluating their claims were revised in 1991, the new committee
has only begun to make headway in resolving the backlog of
cases.
</p>
<p> The prolonged detention of asylum-seekers cannot be
justified on grounds of public order. Indeed, Hong Kong has
handled much larger numbers of both Vietnamese and Chinese
immigrants on past occasions without resorting to incarceration.
The only stated rationales for detention have been deterrence
of future arrivals and deference to local public opinion,
neither of which justifies the arbitrary deprivation of liberty
prohibited by Article 9 of the International Covenant on Civil
and Political Rights. Some eighty thousand arrivals later, even
Hong Kong authorities no longer claim that detention effectively
deters others from setting sail. Nor does the unpopularity of
a specific national or racial group make a deprivation of
liberty less than "arbitrary" under the Covenant. (See Article
26.)
</p>
<p> The 1951 Refugee Convention protects both refugees and
potential refugees from unnecessary restriction on their
movements and penalties imposed solely because of illegal
entry. (Article 31; see also Conclusions on the International
Protection of Refugees, No. 22, para. 11(b)(1) (adopted by the
Executive Committee of the United Nations High Commissioner for
Refugees Programme, 1981.) Hong Kong has not seriously claimed
that detention of all Vietname