Friday 25 April 2014

Refoulement when Vietnam hands Uighur immigrants back to China?

Following is the interview with attorney Vi Katerina Tran, member of the International Bar Association, about the recent border clash between Uighur immigrants and Vietnamese border forces, in which seven people were killed. 

The deadly clash of April 18 at the Bac Phong Sinh border checkpoint raised questions among Vietnamese bloggers whether or not the immigrants deserve sympathy, how they should have been treated, and if the Chinese authorities violated Vietnam's sovereignty when they enforced law in Vietnam.

1. The Tien Phong quoted the “Quang Ninh Electronic Information Gate” as saying, “At 4.20 a.m., April 18, a group of 16 Chinese people, including 4 women and 2 children, illegally entered Vietnam via Bac Phong Sinh border checkpoint. On their way to further intrusion into Vietnam, they were detected by Vietnamese authorities, then arrested and taken back to the border gate for repatriation procedures in accordance with international conventions and regulations.

Could you please let me know which particular international conventions and regulations can be referred to in this case?

I would refer to the United Nations High Commissioner for Refugees – UN Refugee Agency (“UNHCR”) and the 1951 UN Refugee Convention and its 1967 Protocol.  There are also several conventions and declarations that are particular relevant to a specific region.  For example, there are legal instruments on refugees that apply in Africa, Latin America, and the European Union.  There is also substantial body of international human rights law that complements the rights of refugees in the 1951 Convention.  States are committed to protecting the human rights of refugees through their human rights obligations.

2. Would you tell me what a political refugee is, or by which criteria we can identify a person as a political refugee?

According to the United Nations High Commissioner for Refugees, the 1951 Refugee Convention spells out that a refugee is someone who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country."

3. In the recent incidence at Bac Phong Sinh, can we identify those Uighur as refugees?

The treatment of the Uighur in recent years in China has gained deep concern from international community. I recall there was an international call to stop the deportation of 9 Uighurs from Cambodia in 2009.  Recently, there are similar international calls to stop deporatation in regard to the situation of the Uighur refugees in Thailand.

I believe the tension between Uighur and Han Chinese in Xinjiang Province has been escalated since July 2009, following the clash between Uighur and Han Chinese in Urumqi.  From my readings, Uighur are not treated equally as Han Chinese in Xinjiang and they have never been since China gained control over the region in about 1949. They are not allowed to work at certain government jobs. Their religious practices are being censored and limited.  They are jailed and tortured if they demand equal rights and basic human rights. In my opinion, Uighur in China definitely met the definition of refugees under the UN 1951 Convention.

Dead bodies of the Uighurs were put on carts before returned to China.
The photo (source unknown) were apparently removed from mainstream news sites in Vietnam.

4. Under international law, how should they be treated? (This question is very important for Vietnamse readers to understand the story, so please be clear and specific).

When a refugee enters a host country, it is the responsibility of that host country to conduct their own assessment to determine whether the refugee meets the international definition of a refugee.

One of the most basic right of a refugee is to seek protection from their own country at the host country and not to be returned to their home country as he or she may be facing serious threats to his or her life or freedom.  This the principle of non-refoulement contained in Article 33 of the 1951 Convention. The 1951 Convention also specifies specific rights of a refugee in a host country.  For example, right not to be expelled (Article 32), Right to Housing (Article 21), Right to Education (Article 22), Right to Work (Articles 17-19), etc.

While Vietnam did not sign the 1951 Convention, the principle of non-refoulement, which prohibits the return of a refugee to a territory where his or her life or freedom is threatened, is considered a rule of customary international law.  As such, the 1967 Protocol provides that said principle is binding on all States, regadless of whether they have acceded to the 1951 Convention or 1967 Protocol.  A refugee seeking protection must not be prevented from entering a country as this would amount to refoulement.

Vietnam is among many Southeast Asia that do not have any legislation regulating the rights of asylum-seekers and refugees.  However, I believe the UNHCR does conduct refugee status determination in the absence of a national asylum system in the region.  With Vietnam, UNHCR has been working with the government on issue of statelessness, so there is a presence of UNHCR in Vietnam.  I would suggest the government of Vietnam to provide temporary shelter for the refugees and seek assistance and guidance from the UNHCR to deal with the issue if Vietnam does not have a national regulation in regard to refugees and asylum seekers.  Yet, I would like to again emphasize that regardless of Vietnam’s own rules and regulations on refugees, the government of Vietnam is bound to comply with the principle of non-refoulement, which means that it shall not return refugees to their home country to face persecution or deny those refugees entry into Vietnam when they are fleeing their home country.

In a country where there is national legislation regulating the rights of asylum seekers and refugees, typically, there would be reception and transit facilities set up by that country with the assistance of the UNCHR. 

UNHCR works with governments around the world to help them respond to challenges they face in dealing with refugees and asylum seekers (an asylum seeker is a person who claims to be a refugee, yet his or her status as a refugee has not been definitely determined).  An example of this is a 10-point plan which UNHCR is implementing.  It sets out key areas in which action is required to address mixed migration in countries of origin, transit and destination.

Next: Chinese intervention and the issue of sovereignty