Can the Boat People Assert a Right to Remain in Asylum?

• Publication year: 1980
• Citation: Vol. 4 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.1FALL 1980

Can The Boat People Assert A Right To Remain In Asylum?

Brian Roberts

World political reaction to the Southeast Asian refugee crisis has not asserted the refugees' human rights under international law. As a result most of the refugees lack security from forcible return to the conditions they fled. They would have that security if the world powers act instead to implement non-refoulement, an established moral principle that arguably has attained the status of customary international law.

The summer of 1979 may go down in history as the Summer of the Boat People(fn1) because of the hundreds of thousands of Indochinese refugees(fn2) who fled Vietnam, Laos, and Kampuchea in leaky, overcrowded boats, desperately seeking temporary asylum(fn3) from politically and ethnically motivated persecution(fn4) in their native lands. For most, the long sea voyage was a terrifying ordeal, and many thousands did not survive it.(fn5) Even for those lucky enough to reach other shores and receive permission to land,(fn6) the terror may not be over. Because they are present at the sufferance of the governments that admitted them, the great majority(fn7) of the Boat People cannot rely on due process of law to prevent arbitrary repatriation(fn8) if those governments change their attitude. This is so because due process,(fn9) despite advances in worldwide recognition of human rights,(fn10) is still a concomitant of citizenship or of recognized alien status.(fn11) A lag in the development of international law and custom allows some accepting states to deny refugees alien status even while granting them temporary asylum; in those countries, which include the United States of America, the Boat People can be present in body but not "present" at municipal law.(fn12) Their permission to remain derives only from administrative or legislative conferral; and permission that is specially conferred can be easily revoked.(fn13)

In contrast to municipal law, international law(fn14) recognizes human rights that exist independent of alienage. These rights are embodied in the International Bill of Rights, a series of documents that the United Nations inaugurated in 1948(fn15) to define and protect fundamental human freedoms. At first broadly worded and put forth as a "common standard of achievement,"(fn16 ) this body of law through subsequent citation and expatiation has pervaded world politics with amazing speed.(fn17) International human rights law forbids any state forcibly to repatriate political refugees to a state of origin where persecution awaits them.(fn18) Documented severe discrimination, amounting to outright persecution,(fn19) was the cause of the Boat People's exodus and presumably awaits them if they return. Nevertheless they remain in danger of repatriation because of lags or inconsistencies in the application of international human rights law.

Inconsistencies are the common signs of a clash between old and new concepts in the law.(fn20) Human rights, a new concept in international law,(fn21) has gained its place in conflict with the time-honored tradition of the state's supremacy within its own borders;(fn22) thus it is no surprise that international human rights law is not yet thoroughgoing. One conspicuous discrepancy, mentioned above, is the state's continuing license to tie legal rights to its definition of "presence." In addition, the maxim that "for every right there must be a remedy" does not yet apply here: international law enumerates rights of individuals but no remedies for individuals. Any suit by an individual in an international forum would clash with the ancient but persistent principle that only sovereigns have international standing.(fn23) Thus, absent arguments for modifying the standing requirement, the Boat People must somehow convince their sovereign states to plead their case as if the states themselves were the aggrieved parties. This is unlikely ever to happen because the Boat People's sovereign states caused their troubles in the first place.

This comment assesses legal arguments that might help the Boat People find and assert a right to remain in asylum.(fn24) The focus is on Indochinese refugees because they are one of the greatest masses of displaced persons today.(fn25) Although their emigration has slackened and the recent arrivals of Haitians and Cubans have eclipsed the coverage of them in the United States media,(fn26) hundreds of thousands of Boat People remain in limbo with no reasonable hope of permanent resettlement.(fn27) Furthermore, few Boat People can take advantage of international agreements; the states where the bulk of them sojourn have not ratified any of the international protocols or conventions on refugee rights.(fn28) Thus, the Boat People must rely on international law in its most general form, and any legal argument available to them is available to any refugee from persecution.(fn29) To develop those arguments, this comment first examines the evidence that international human rights, through a generation of usage and interpretation, have become customary law(fn30) that applies throughout the world. Second, the comment extrapolates from existing legal doctrine to find grounds for greater consistency in international human rights and correspondingly greater restriction on a state's power to deal with refugees arbitrarily. Finally, it looks at developments in the international law of standing whereby the Boat People may be able to gain representation for enforcement of their rights. If these arguments have any persuasiveness, not only the Boat People but also any other political refugees and future refugees may benefit.

Refugeehood: Its Past and Future

Arguments for a legal solution to the refugee problem gain added force from the emerging realization that the problem is not a temporary one.(fn31) The Boat People cannot safely go home in the foreseeable future, nor are they likely to find any state that will give them citizenship en masse. They are permanent refugees, and they are by no means the only group of refugees in that plight.(fn32) The situation of today's refugees thereby differs from that of the millions made homeless or stateless(fn33) by the two world wars, most of whom found homes once the fighting stopped. Observers in that era felt that, short of another global war, the number of refugees would dwindle to an easily manageable size.(fn34) Accordingly, voluntary solutions were the predominant mode of dealing with the problem.

The first concerted international effort to deal with refugeehood, by the League of Nations in 1921, was in this voluntary mode. Nearly a million persons had fled the civil war in Russia. The League appointed a High Commissioner for Refugees, whose function was to allocate the refugees among those countries willing to take them in, to find work for them, and to undertake relief work among them with the aid of philanthropic societies.(fn35) The commissioner did not have a mandate to assist all political refugees,(fn36) so as new upheavals produced new expatriates the League extended the mandate by piecemeal resolutions: to the Armenians in 1924,(fn37) to the Assyrians, Assyro-Chaldeans, and Turks in 1928,(fn38) to residents of the Saar in 1935,(fn39) and to Austrians and Sudetenlanders in 1938.(fn40) The current refugee assistance agency, the Office of the United Nations High Commissioner for Refugees (UNHCR),(fn41) has a broad mandate but still essentially depends on voluntary relief measures. The statute of the office describes the commissioner's functions in such phrases as "[p]romoting . . . international conventions," "[assisting governmental and private efforts to promote voluntary repatriation or assimilation," and "[e]ndeavouring to obtain permission for refugees to transfer their assets."(fn42) Promoting, assisting, and endeavoring, where the results must depend on charity, are no substitutes for enforcement of legal rights.(fn43)

Charity, however, when extended on principle can become custom; and custom under some circumstances can become international law.(fn44) Paul Weis, legal advisor to the Office of the UNHCR, noted in 1954 that the refugee resettlement agreements of that and other international agencies customarily contained restrictions on expulsion,(fn45) and postulated the growth of that custom into a duty. While admitting that states classically had full discretion to exclude aliens, he considered that discretion to be no longer absolute: It is believed, however, that a rule of international law is in the process of development, which qualifies this right in the sense that states should not refuse admission to a bona fide refugee where such a refusal would expose him to persecution endangering his life or freedom, i.e., primarily at the frontiers of his country of origin. This does not imply that the admitting state should necessarily permit the continued residence of the refugee once admitted. The admitting state may, subject to its treaty obligations, and sometimes does, expel him to another country.(fn46) Ten years later Weis stated his rule more emphatically: "There seems to be general acceptance of the principle of the nonreturn of refugees to a country of persecution."(fn47) On hindsight, we need only compare these words with more recent headlines(fn48) to conclude that Weis was premature. This does not mean he was wrong. Many commentators agree...