RPN 18 published January 1995

9. Stateless persons and the 1989 Comprehensive Plan of Action by Tang Lay Lee

A stateless person is legally defined in the 1954 Convention Relating to the Status of Stateless Persons as `a person who is not considered as a national by an State under the operation of its law'. In other words, she/he is a de jure stateless person. A person who remains the national of a country but who is refused protection by its government is a de facto stateless person. The Final Act of the Stateless Persons Convention exhorts parties to the Convention to extend protection to such de facto stateless persons provided they renounced their nationality for clearly valid reasons.

The Comprehensive Plan of Action for Indo-Chinese Refugees was adopted by 80 countries at the International Conference on Indo-Chinese refugees held in Geneva on 13-14 June 1989. It broke the impasse between Vietnam, the first asylum countries in South East Asia and resettlement countries. For more than a decade after the Vietnam War ended in 1975, Malaysia, Indonesia, the Philippines, Hong Kong and Thailand played host to refugees from Vietnam. The USA, Canada, Australia, the UK and other Western countries resettled more than 1.5 million people from Vietnam. However, by the mid 1980s, the resettlement countries were reluctant to accept more refugees from Vietnam. Hence, the CPA provided for a stop to illegal departures from Vietnam, refugee status determination of those who arrive in first asylum countries, resettlement for the successful Vietnamese asylum seekers and repatriation of those who failed in their applications.

The Comprehensive Plan of Action is far from comprehensive. Among other things, it does not cover stateless persons. Their existence was not anticipated. They are unable to repatriate to Vietnam even though they have been denied refugee status. They are not Vietnamese nationals and are stateless, either de jure or de facto. It is an issue which will not go away even though the refugee status determination procedures are over. In Hong Kong, about 25,000 people remain in the detention centres resisting repatriation. There is great concern that these stateless persons may be neglected or forgotten in the process of camp clearance in the closing phase of the CPA.

At first, about 200 in the Hong Kong detention centres claimed that they were nationals of the Republic of China (ROC), commonly known as Taiwan. About 4,000 people in the detention centres now make the same claim. Even if they can prove their claim, they cannot enter or reside in Taiwan because its domestic laws severely restrict the residence of nationals from abroad. Vietnam will not take them back unless they drop their claim to ROC nationality and say they are Vietnamese. In this day and age of human rights, their right to a nationality, an effective nationality, is at issue.

After World War II, there were masses of refugees and stateless persons in Europe. While refugees had fled persecution, stateless persons also faced many problems. They were not entitled to housing, jobs, welfare or education in the same way as nationals of the host country. Neither could they easily obtain papers to facilitate travel. The UN came to their rescue and also acted to alleviate the plight of refuges and stateless persons for the future. The Refugee Convention was signed in 1951 to protect the rights of refugees, including stateless refugees. Stateless persons were assisted by the Convention Relating to the Status of Stateless Persons 1954 and the Convention on the Reduction of Statelessness 1961.

Under international law, Vietnam is only obliged to admit her nationals. No similar obligation extends to non-nationals. Even if Vietnam does admit them, she is under no obligation to treat them as nationals. There is no guarantee of admission or proper treatment because Vietnam is not a signatory to any of the Refugee or Stateless Conventions. China signed only the Refugee Convention but reserved her rights on the issue of settlement of disputes. Some parties to the CPA, including the United Kingdom (representing Hong Kong) and Australia, are signatories to the Stateless Conventions as well as to the Refugee Conventions.

UNHCR is studying this issue anew because the break up of the former Soviet Union and the former Yugoslavia has led to fresh problems of statelessness. It is proposing that a separate international agency be set up to protect the rights of stateless persons. However, the stateless persons under the CPA cannot wait for that to happen.

Since these stateless persons are in Hong Kong, the primary responsibility lies with the United Kingdom as a signatory to the Stateless Conventions. An urgent resolution is needed, particularly in the light of 1997 when Hong Kong will be returned to China. All the parties to this international settlement, together with the UK, must resolve these issues of statelessness in the spirit of burden-sharing of the CPA. Only then will the CPA be recorded in history as a politico-legal achievement of our times.

Tang Lay Lee is working with the Jesuit Refugee Serice Asia Pacific on legal research projects.

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July 1997