Refugees are our responsibility, too
Hong Kong is a society built by refugees, most arriving from mainland China during periods of political and social unrest. Throughout its history, this city has generally accepted asylum seekers, providing settlement or temporary protection despite its dense population and small geographical size.
Between 1975 and the mid-1990s, Hong Kong successfully integrated millions of people from the mainland, and coped with more than 200,000 asylum seekers from Vietnam.
But inadequacies in the government's current approach towards refugees have been highlighted by the United Nations High Commissioner for Refugees. It announced recently that, because of budget constraints, it could no longer afford to support asylum seekers in Hong Kong while their claims were pending.
In addition, the ensuing debate about this decision has revealed common misperceptions - namely, that Hong Kong has no legal obligations towards refugees, and that the UNHCR has the primary responsibility to provide protection to refugees and asylum seekers.
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol have not been extended to Hong Kong.
Nonetheless, this city is still bound by the international legal principle of non-refoulement - which says refugees may not be returned to places where their lives or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or holding a certain political opinion.
This principle is part of international law, and is binding on all states regardless of treaty obligations.
But Hong Kong's current immigration regime does not ensure respect for non-refoulement. That is because asylum seekers and refugees have no special status under Hong Kong law. Nor is there a policy to distinguish them from other arrivals.
So a formal mechanism must be implemented to determine refugee status - and therefore entitlement to protection under the non-refoulement principle.
In the meantime, asylum seekers must not be turned away, since many of them may be genuine refugees.
The non-refoulement principle also applies to other multilateral treaties that cover Hong Kong, including the International Covenant on Civil and Political Rights and the Convention against Torture. Another misperception is that the UNHCR owes Hong Kong a large debt left over from the Vietnamese refugee era. Although the agency reimbursed Hong Kong for some of the money spent on housing and processing Vietnamese asylum seekers, the Hong Kong government has repeatedly asked for reimbursement of a further $1.6 billion.
But this amount is not actually a debt. In 1988, the UNHCR told Hong Kong authorities that it would continue to reimburse the city for its expenses related to Vietnamese asylum seekers - as long as donor countries continued to provide the funds. But many key UNHCR donors believed they fulfilled their international burden-sharing obligations during the Vietnamese refugee era by resettling Indo-Chinese refugees in their territories. So they earmarked their subsequent UNHCR donations to refugee situations elsewhere in the world that they considered a higher priority.
Hong Kong, as a wealthy jurisdiction, should understand that all governments must share the responsibility for ensuring the protection of refugees. To do that adequately, this city needs a comprehensive, systematic policy towards asylum seekers and refugees.
Such a policy should include the establishment of a legal framework for a mechanism to determine refugee status and to offer basic protections for refugees.
The UN Refugee Convention, which binds 143 countries, including China, should also be extended to Hong Kong.
Kelley Loper is a PhD candidate in the faculty of law at the University of Hong Kong and is the co-author of a report on refugee issues in Hong Kong
