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Australian Outlook
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The ‘boat people’: Are they refugees?

a
B. M. Tsamenyi
a
Lecturer in the Faculty of Law , University of Papua New Guinea
Published online: 20 Mar 2008.

To cite this article: B. M. Tsamenyi (1983) The ‘boat people’: Are they refugees? , Australian Outlook, 37:1, 40-48, DOI:
10.1080/10357718308444804

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 THE 'BOAT PEOPLE': ARE THEY REFUGEES?1
B. M. Tsamenyi*
Introduction
Since the fall of Saigon to the revolutionary forces of Viet-
nam in 1975, some hundreds of thousands of people have left
Vietnam in search of asylum. While many Vietnamese crossed
the land border to China, and some made their way by land to
Thailand, a substantial group left Vietnam by boat seeking
landfall in neighbouring countries of South-East Asia and
Hong Kong. This group is commonly called the 'boat people', a
term which may have been inadvertently coined to avoid any
direct acknowledgement of refugee status of these people, since
such status would entail legal obligations to them.
Since the inception of the 'boat problem*, these people have
been called refugees without any close examination as to
whether they are really refugees under international law. At the
Downloaded by [Monash University Library] at 12:54 03 February 2015
same time, there is another view which argues that the 'boat
people' are not refugees. In this respect, one often hears criti-
cisms of the motives and character of these people. It is alleged
that they are merely 'economic refugees'.
What I propose to do in this paper therefore, is to address this
crucial issue: whether, under the circumstances in which the
'boat people' fled Vietnam, they may be called genuine refugees
in the legal sense?
Background to the Exodus
Because the status of the 'boat people' as refugees under
international law is affected by their motivations for leaving,
the background to their departure needs to be explained.
Although the factors underlying the departure of such large
numbers of people are not easy to distinguish, a reasonable
analysis of extenal and internal factors at play in Vietnam since
the end of the war in 1975 would suggest the following factors as
substantially influencing the exodus.
The Legacy of the War
For almost thirty continuous years, Vietnam was riven by
war, with the era of American intervention between 1965 and
1975 making the climax of this period. Any attempt to under-
stand the problems of the 'boat people* should take into account
the effects of the legacy of war on Vietnamese society. When the
war ended in 1975, Vietnam faced a host of problems. During
the war, Vietnam's economic development in both north and
south was reported to have been severely circumscribed and
dislocated. In addition to the problems of poverty and scarcity
of resources there was devastation on a staggering scale.2
Economic and social problems, deriving from the effects of
war and underlying rapid social change, were accompanied by
acute political problems. Whilst some sectors of southern
society had supported the socialist cause, other sectors includ-
ing minority religious groups (especially the Catholics), ethnic
Chinese and many urban dwellers had little sympathy for, and
much suspicion of, the new Government. These problems
cumulatively created fertile grounds for the exodus.
The Development Strategies of the Vietnamese Government
after the War
Reconstruction had to proceed after the war with almost no
input of foreign aid from western countries, and a significant
* Lecturer in the Faculty of Law, University of Papua New Guinea.
40
reduction in assistance from the Socialist Commonwealth.1
This virtual cutoff in foreign flows after years of comparative
affluence caused dislocation and severely constrained the devel-
opment options of the new Government. The reconstruction
strategies and policies of the new Government were contribut-
ing factors to the exodus. Three major policies were of particu-
lar importance: re-education, new economic zones and
nationalisation of private enterprise.
One of the major programmes of the Government after 1975
was to 're-educate' those Vietnamese, principally the military,
who were said to have collaborated with western imperialism.
These people were thought to have been corrupted under the
old regime and therefore needed to be exposed to the duties of
true Vietnamese citizens in the new stage of socialist reconstruc-
tion. It is estimated that over one million people have gone
through this process, which involves ideological orientation,
manual labour, trade training and self criticism.4
Much controversy surrounds conditions in the re-education
camps. Many people regarded the process as a tough transition
through bleak detention to probationary or second-class citi-
zenship. According to one report, inmates of the camps live
under conditions that can be survived only by people in robust
physical health; while other reports argue that conditions in the
camps are good.9
Whatever the conditions, one conclusion is obvious. The
introduction of this policy contributed to feelings of insecurity
and therefore to the continuing flow of refugees from Vietnam
in the period from May 1975. This group was dominated by
those who were closely associated with the American presence.
These were mainly ethnic Vietnamese (and some Chinese) soldi-
ers, members of the administration and political organisations
of the previous regime.6 There was also a noticeable movement
by Vietnamese from the professional class (particularly admin-
istrators, doctors and lawyers).
At the Fourth Party Congress of the Vietnam Communist
Party in 1976, a Five-Year Development Plan was adopted
which emphasised agriculture and light industry. This involved
a programme of population relocation to alleviate overcrowd-
ing and unemployment in urban areas and to develop land in
new economic zones.'7
The implementation of this programme meant that over four
million people had to leave the over-populated cities and low-
land plains to settle in new economic zones located in the
highlands and in the Mekong Delta. According to the Premier,
Pham Van Dong,
Beginning in 1977, we must conduct a campaign to reor-
ganise the labour force on the scale of slightly less than 4
million persons in the space of 4 years in order to transfer
labour from the large cities in the South and the densely
populated lowland areas and surplus labourin the north-
ern provinces to places which have the instrument of
labour, especially land, but no persons to perform the
work that must be done.*
Like the 're-education camps', there is controversy about the
precise nature of the new economic zones. The US State
Department has described them as primitive communes gener-
ally located in remote agricultural land areas with, people
assigned to them receiving little or no real assistance from the
state.9 Many urban Vietnamese also regard them as a death
sentence.10 Vietnamese authorities argue, .however, that condi-
tions in some of the zones are the result of floods or other
unfavourable circumstances, including administrative errors."
 THE 'BOAT PEOPLE': ARE THEY REFUGEES?
There is evidence to suggest that the economic zone policy is
responsible for the exodus of a large number of people from
Vietnam. Given the fact that many of the people affected had
lived in the cities for most of their lives and were not used to
manual labour, it is likely that they would regard life in the
economic zones as abhorrent. Interviews conducted among
some 'boat people' confirm the suggestion that some of them
did face the sea because of fear of going to the new economic
zones:
We would have to go to the mountains if we didnt have
the money to go abroad. Everybody in my neighbour-
hood was afraid of working in the mountains. We're used
to working with machines. We don't know about farm-
ing. So most of the people wanted to leave.12
Until early 1978, the socialist economy in the north and
the capitalist one in the south co-existed. However, under new
guidelines issued in March 1978, the economy of southern
Vietnam was to be gradually transformed so that all major
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means of production, distribution and exchange were to be
nationalised.13 That meant that the Government was no longer
prepared to accept a situation in which control of the vital areas
of the economy remained in the hands of private investors. In
Ho Chi Minh City, for example, it is estimated that the cam-
paign to eliminate private enterprise affected about 30,000 trad-
ers, most of whom were ethnic Chinese and who had remained
in control of industry, commerce and trade.14
It is riot exactly clear what happened to people affected by the
nationalisation policy but reports indicate that some of the
traders were given the option of either working for government-
operated enterprises or going to the new economic zones.15 The
nationalisation policy was announced, followed by a sudden
currency change; this resulted in the wiping out of many of the
profits and savings of these traders. Thus, for many traders,
these policies meant a choice of either remaining in Vietnam
with a greatly reduced status, going to economic zones, or
leaving by boat. This coincided with the period of the greatest
exodus of people. It seems likely that while the majority of this
group were of ethnic Chinese origin, ethnic Vietnamese who
were experiencing status deprivation and a decline in the stand-
ards of living also left. With a background of fifteen years of an
American-funded, artificially consumer-oriented society, those
who had become accustomed to this were unlikely to feel secure
in an austerely socialist society." These factors in the new
Government's policies seem to have contributed significantly to
several successive waves of 'boat people'.
The Kampuchean-Vietnamese Dispute
The dispute between Kampuchea and Vietnam also contrib-
uted to the exodus. Disputes between Vietnam and Kampuchea
regarding historical boundaries, ethnic animosities, ideological
divisions, and problems in both countries* relations with China
led to a continuing deterioration in relations between the two
countries. Exacerbation of these factors culminated in the Viet-
namese invasion of Kampuchea in late 1978.
These circumstances encouraged a refugee flow, both from
the border clashes and from Pol Pot's persecution of ethnic
minorities (princially Vietnamese and Chinese). The invasion of
Kampuchea by Vietnam led to intensified emphasis on con-
scription in the south. In order to avoid conscription for combat
in Kampuchea, many young Vietnamese began to leave.17 The
conflict with Kampuchea not only led to a further deterioration
of social and economic conditions in Vietnam but also to the
burden on Vietnam of transferring food to Kampuchea to
bolster the Heng Semrin regime. This further created favoura-
ble conditions for the exodus.
The Sino-Vietnamese Conflict and Internal Vietnamese
Ethnic Disputes
A closely related source of pressure for the exodus was the
conflict between Vietnam and China. The deterioration in Sino-
Vietnamese relations originated from a number of ideological
and strategic issues." These conflicting strategic interests deriv-
ing from the Sino-Soviet dispute contributed to the Vietnamese
invasion of Kampuchea and the consequent Chinese retaliatory
invasion of Vietnam in February 1979. This situation was com-
plicated by disputes over the nationality and loyalties of the
Hoa (ethnic Chinese) in Vietnam. The Hoa people, although
numbering an estimated 1.5 million in a population of 54 mil-
lion, had attained a position of dominance in the economy of
Vietnam, as a result initially of colonial policies. This domi-
nance continued in the south after 1954."
While there had been periodic discussions between China and
the Governments of north and south Vietnam about the citizen-
ship and national loyalties of the Hoa before 1975,20 these had
not resulted in a common view. In a 1955 agreement,21 China
and Vietnam agreed that people of Chinese descent in north
Vietnam would gradually be integrated into Vietnamese society
as nationals on the condition that they enjoyed equal rights with
the original citizens of Vietnam. On the question of Chinese
residents in south Vietnam, China maintained that the agree-
ment stipulated that their situation would be resolved through
consultations, which however did not take place. China there-
fore argued that any attempt by Vietnam unilaterally to deter-
mine the nationality of the Hoa in the south would be a
violation of the 1955 agreement.22 Vietnam, on the other hand,
though accepting that the 1955 agreement was only applicable
to north Vietnam, maintained that all people of Chinese descent
in the south had become Vietnamese nationals through a decree
issued by the Ngo Dinh Diem regime in August 1956 which
compelled all Chinese residents in Vietnam to adopt Vietna-
mese nationality.23
These differences in view had not constituted a serious source
of tension in Sino-Vietnamese relations until 1978, despite,
apparently, the fact that people of Chinese descent in southern
Vietnam could in practice be Vietnamese nationals, Chinese
nationals or citizens of Taiwan. In 1978, however, questions
regarding the citizenship and loyalties of the Hoa were raised by
the Chinese as one part of their list of complaints against
Vietnam. On several occasions, China strongly protested
against Vietnam's treatment of the Hoa. It claimed that the
March 1978 policy on closure of private businesses was a dis-
criminatory act directed against the Hoa.24 Then, China
announced ti would send ships to Ho Chi Minh City to rescue
'persecuted* Chinese nationals.25 China also adopted a new
constitution, part of which referred to the desire of China to
protect the interests of ethnic Chinese abroad.26
From Vietnam's point of view, the Hoa in the north had been
integrated fully into society, and the communist parties of
Vietnam and China had agreed that the Hoa were Vietnamese
nationals. In the south, the new Government followed the
situation under" the Diem regime, where Hoa were declared
citizens of Vietnam. Thus, Vietnam denied the Chinese charges
and complained of interference in its internal affairs. Further,
Vietnam saw this new-found concern with the welfare of Hoa in
some contrast to the lack of Chinese interest in ethnic Chinese
persecuted under Pol Pot, and drew the conclusion that the Hoa
campaign urged by the Chinese was really an attempt to cause
disruption in Vietnam.
For the Hoa themselves, these events caused acute conflict of
loyalties. In the event of open hostilities between Vietnam and
China, their loyalties would be suspect on both sides. This
contributed to the exodus of over a quarter of a million of the
northern Hoa to China and later to Hong Kong, and to the
41
 B. M. Tsamenyi
exodus of Hoa from the south by sea in the period from the
beginning of 1978 through to mid-1979.
Natural Disasters
In addition to the factors outlined above, natural calamities
have added to the plight of the people of Vietnam. A serious
drought • was followed by massive flooding that critically
affected the country's food production. These natural disasters
reached their peak in 1978 when devastating floods, said to be
the worst since 1945, affected more than half the lowland areas,
endangering the lives of more than six million people and
causing acute shortages of food, with the consequence of severe
starvation. The general economic situation was reported to be
abysmally bleak.27 It is likely then that the impact of these
natural disasters also contributed to the exodus of people from
Vietnam. This argument is supported by interviews conducted
among 'boat people', some of whom referred to food shortages
as a major reason for leaving Vietnam.2*
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Deliberate Government Policy of Sending People Away
The early groups of 'boat people* who left Vietnam between
1973 and 1978 did so in small boats through privately organised
escape groups,29 in the face of Government opposition. By early
1978, hwever, there were mounting allegations that the Vietna-
mese Government had become involved in the exodus. Accord-
ing to a recent study, the Public Security Bureau in southern
Vietnam set up offices—with the task of initial registration and
approval of applicants wanting to go abroad30—in Ho Chi
Minh City (including Cholon, the 'China Town*), in coastal
provinces of the Mekong Delta, and in central Vietnam.
The involvement of the Government seems to have been
geared primarily to the exodus of the Hoa, though ethnic
Vietnamese were reported to have left in some of these groups.
The cost of departures was said to be fixed at between 3.5 and
4.5 tacls of gold per person.31 There are a number of estimates of
the proceeds from the payments of people leaving; one puts it at
one hundred and fifteen million dollars, about 2.5 per cent of
the total estimated gross national product of Vietnam.32
Though Vietnam has denied official Government involve-
ment, it could not do so convincingly. The Secretary of State for
Foreign Affairs of Vietnam had twice been quoted as saying
that Vietnam had experienced its Watergate and Lockheed
Scandals,33 implying corruption at the highest levels of govern-
ment. In another interview, the Foreign Secretary, Nguyen Co
Thach said inter alia:
In 1975, we forbade them to go out. We were criticised by
the West. We thought it over. We decided to give them
the freedom to go. Now they say we are exporting refu-
gees. So now we say they must ask to go. And we will
allow them to go. 34
Whilst it seems unlikely that Vietnam would have encour-
aged or forced the sudden departure of ethnic Vietnamese,
allegations of official involvement in relation to the Hoa are
plausible, considering the fact that relations between China and
Vietnam have been strained over the years.
Other Factors
The 'lure of the prosperous world' has been suggested as a
possible factor in explaining the exodus. News of the good life
abroad, particularly conveyed by letters and broadcast, has
encouraged a favourable view of settlement prospects. Most
'boat people' interviewed give one answer to the question of
where they would like to settle. They reply that they want to go
to America, 'thebeautiful country'.35 It has been suggested that
42
this paradise concept makes the boat people's willingness to risk
the journey at sea partially understandable.36 It is also argued
that an extension of the paradise concept is the relative willing-
ness and generosity of western countries in settling them,
because every additional place which is publicly added to the
quota induces several more people to try their luck on the high
seas.37 It may also be argued that some of the 'boat people'left
not at their own initiative but because they were induced by
friends and relatives. We may include in this group particularly
children who left with their parets, and husbands and wives who
escaped with their spouses.
Who is a Refugee?
It is against the background just outlined that I will discuss
the refugee status of the 'boat people'. Before doing this how-
ever, it is necessary to address the question: Who is a refugee
under international law? It is not possible to give a single
definition of the term 'refugee'. This is because, under interna-
tional law, the status of refugees is not regulated by customary
rules of law but by multilateral conventions.31 Since 1922, a
number of treaties have been concluded which have defined the
term 'refugee' differently. It follows that in the legal sense, a
refugee connot be defined except in the context of a particular
convention.3'
In this paper, I will adopt the definition under the Refugee
Convention of 1951—as amended by the 1967 Protocol. Under
this Convention, a refugee is defined as:
Any person who has been considered a refugee under the
Arrangements of 12 May 1926 and 30 June 1928, or
under the Convention of 28 October 1933 and 10 Febru-
ary 1938, the Protocol of 14 September 1939 or the
Constitution of the International Refugee Organization,
or
Any person who owing to 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 or, owing to such fear is unwilling to avail himself
of the protection of that country, or who, not having a
nationality and being outside the country of his former
habitual residence as a result of such events, is unable or
owing to such fear is unwilling to return to it.40
Thus, under the Convention, a refugee must satisfy the
following requirements:
—He must be outside the country of his nationality, or the
country of his habitual residence if he is a stateless person.
—He must be outside the said country owing to a well-
founded fear of persecution for reasons of race, religion, nation-
ality, membership of a particular social group or political
opinion.
—The persecution for the above-mentioned reasons must be
due to political events.
—The person concerned must be unable or unwilling to avail
himself of the protection of the country of his nationality or
must be unwilling or unable to return to it if he is stateless.
If one's aim is to arrive at a definition of a refugee which will
be of general application, the definition contained in the 1951
Refugee Convention must be adopted. In the first place, the
Convention, supplemented by the 1967 Protocol, is the most
current and universal of the treaties in which a refugee is
defined. Secondly, this Convention, to a large extent, codifies
the earlier arrangements on refugees. It also regulates the status
of refugees in a more coherent manner than the previous con-
ventions. Thirdly, it is conceivable that the 1951 Convention
may become universal as a result of the accession of all states.
 THE 'BOAT PEOPLE': ARE THEY REFUGEES?
Although this has not yet happened, one can discern a move
towards universality. For example, a resolution adopted by the
Assembly of the Heads of States and Governments of the
Organization of African Unity in September 1967 calls on
member states of the OAU which have not yet acceded to the
1951 Convention to do so and to apply it to refugees in Africa.
Fourthly, the fact that the United Nations has established an
office of High Commissioner for Refugees, whose Statute
defines a refugee in almost identical words to the 1951 Refugee
Convention, indicates that this Convention is gaining wider
recognition.
The 'Boat People'as Refugees?
An essential element in the definition of a refugee under the
Refugee Convention is that the person claiming refugee status
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must have left the territory of the state of which he is a national,
or habitual resident if he is stateless. Article 1 A, paragraph 2, of
the Convention provides as one of the conditions for being
granted the status of a refugee that the person in question must
be outside the country of his nationality or habitual residence
owing to a fear of being persecuted. The phrase 'is outside' has
been interpreted to mean 'shall remain*, 'had had to leave", or
'remains outside'.41 This means that, to quality as a refugee, the
person concerned must have left the said country or must have
remained outside the frontiers of that county.
That the boat people are outside Vietnam is an obvious fact.
Those possessing Vietnamese nationality may be said to be
outside the country of their nationality. Similarly, those who
may be stateless (if any), may be said to be outside the country
of their former habitual residence. The term 'country of former
habitual residence' has been defined to mean the country in
which a person has resided and where he had suffered persecu-
tion, or fears he would suffer persecution if he returned.42 It
follows that if a stateless person resided in Vietnam and flees
because of persecution or fear of persecution, he may be
regarded as having been formerly resident in Vietnam.
The case of the Hoa or the ethnic Chinese, however, raises
problems in view of the conflicting claims between China and
Vietnam concerning their nationality.43 The provision that a
person claiming refugee status must be outside the country of
his nationality, if read together with the other proviso in Article
1 A, paragraph 2, about people with more than one nationality
will produce the result that, in order to qualify as a refugee, a
person must be outside each and every one of these countries.
Are the Hoa to be regarded as Vietnamese or Chinese nation-
als? If they are Vietnamese nationals, it may be said that those of,
them who are 'boat people' are outside their country of nation-
ality. In the same way, if they are stateless, they may be said to
be outside their country of former habitual residence, in view of
our definition of 'country of former habitual residence'. On the
other hand, if they are Chinese nationals, though it may be said
that they are outside their country of nationality, i.e. China, it is
doubtful whether they may quality as refugees within the mean-
ing of the Refugee Convention since the cause of their leaving is
not attributable to China, but to Vietnam. It may be argued that
if the Hoa are Chinese nationals, then the appropriate place for
them to flee is to China, not elsewhere. Alternatively, they may
be considered as having dual nationality, i.e. Chinese and Viet-
namese. This calls into question the provision in Article 1A,
paragraph 2, of the Refugee Convention which provides that:
In the case of a person who has more than one nationality
the term 'country of his nationality' shall mean each of
the countries of which he is a national, and a person shall
not be deemed to be lacking the protection of the country
of his nationality if, without any valid reason based on
well-founded fear, he has not availed himself of the pro-
tection of one of the countries of which he is a national.
The application of the above-quoted provision to the Hoa
may also disqualify them as refugees within the meaning of the
Refugee Convention should they be considered as having dual
nationality, because it can be said that they have not availed
themselves of the protection of one of their countries of nation-
ality, i.e. China. In other words, if they have problems with the
Vietnamese authorities, and they have dual nationality, an
alternative place for them to go is China.
To resolve the controversy created by the conflicting claims
by both Vietnam and China regarding the nationality of the
Hoa, it is necessary to discuss the relevant international legal
rules on nationality. Article I of the International Convention
on Certain Questions Relating to the Conflict of Nationality
Laws provides that 'it is for each State to determine under its
own law who are its nationals' and that 'this law shall be
recognised by other states in so far as it is consistent with
international conventions, international customs and principles
of law generally recognised with regard to nationality*. Article 2
of the same Convention also provides that 'any question as to
whether a person possesses the nationality of a particular state
shall be determined in accordance with the law of that state*.
According to Grahl-Madsen, 'these provisions may be consi-
dered a codification of generally accepted rules of international
law,' and 'these rules are, in principle at least, applicable also
when it comes to the determination of the national status of an
applicant for recognition as a refugee'.44
The application of the above-quoted rules to the case under
discussion only compounds the problem. Both China and Viet-
nam are claiming the Hoa as their nationals. An additional
problem is the fact that the Refugee Convention does not say
what to do in a case where the nationality of a person claiming
refugee status cannot be determined.
It is submitted that, in the absence of any relevant rules, a
pragmatic approach should be adopted. The country from
which a person whose nationality is in doubt flees should be
taken as his country of nationality. As Grahl-Madsen correctly
argues, 'it will be best in keeping with the phraseology of the
Convention as well as the humanitarian spirit underlying this
instrument, if one, in cases of absolute doubt, gives the appli-
cant the benefit of the doubt'.45 It seems that this statement
makes both good sense and good law. The worthier view is that
because of the doubt surrounding the nationality of the Hoa,
for practical and humanitarian reasons, they must be consi-
dered nationals of the country in which they claim they are
being persecuted, in this case, Vietnam. Furthermore, having
lived in Vietnam for the past three centuries and having made
Vietnam the centre of their economic activities, it is proper that
they are regarded as having the 'effective nationality' of
Vietnam.46
It is also necessary to determine whether the manner in which
a person is outside his country of nationality or habitual resi-
dence matters, in view of the fact that some of the 'boat people*
were said to have bribed their way out, stowed away or been
deliberately 'exported' by the Vietnamese Government. The
various instruments on the status of refugees have no relevant
provisions to this effect. In the absence of any express or
implied provision it can be argued that it does not matter in
what way, or in what manner, a person has left his country of
nationality or habitual residence. Grahl-Madsen also argues
this position. According to him, the person concerned
may have left clandestinely, that is by sneaking across the
frontier or stowing away on a ship. He may have left by
means of a false passport or by bribing or over-powering
a frontier guard. He may have left the country openly, by
43
 B. M. Tsamenyi
virtue of an ordinary valid passport, with or without the
intention of claiming to be a refugee as soon as he has set
foot on a foreign soil. Or he may have been expelled,
exiled or banished from his home country.47
Professor Johnson also makes a similar point. According to
him, there appears to be no reason why, generally, a state
should not actively assist its nationals to leave, whether or not
for payment. To him, the question of payment appears to be
irrelevant.4* Thus, the fact that some of the 'boat people' may
have paid for their passage, bribed officials or may have been
deliberately sent away by Vietnamese officials does not in itself
prejudice their status as refugees. The most important thing is
that they should be outside Vietnam, which they are.
The fact that a person is outside his country of nationality or
habitual residence per se does not make him a refugee. There
must be a rupture of normalcy of relations between him and his
state, which rupture must derive from events which are political
in nature. As Vernant argues, 'the events which are the root-
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cause of a man's becoming a refugee are always of a political
nature*.49
Looking at Vietnam in this light it would seem that the
various reasons given for the exodus of the 'boat people* must
be considered political events. When a Government such as the
Vietnamese initiates strictly controlled economic measures and
enforces drastic changes in the working and living conditions of
some sections of the community, through directing some people
to new occupations and 're-education'camps, these should be
interpreted as political events.
The Sino-Vietnamese conflict and its ramifications, which
resulted in the exodus of the ethnic Chinese, may, on the face of
it, be said to be a political issue between two states. It may also
be argued that if political events between two states produce a
state of uncertainty and insecurity for portions of the commun-
ity and in consequence they flee, there is no reason why these
people should not be considered to be fleeing as a result of
political events
That some of the' boat people* may have economic motives
cannot be denied. However, can it be argued that such people
did not leave because of political events? The economic condi-
tions which motivated the exodus may be attributable to the
political uncertainties that have been created over the years as a
result of the protracted war, which was essentially political.
Furthermore, the fact that some of the 'boat people' may have
economic motives is immaterial, for in so far as their action
implies the rejection and condemnation of a whole political
system, they make a political choice. As Vernant argues, the
'one who had managed to escape from a discipline that has
become an intolerable straight jacket to him should regard his
country or origin as responsible for his lot and consider himself
released from the reciprocal bond of protection and allegiance
which united him to it'.50
The mere fact that a person is outside his country of national-
ity or habitual residence as a result of political events is, how-
ever, not in itself sufficient to confer on him the status of a
refugee. Before a person may qualify as a refugee, the 'political
events'which are the cause of his departure must be accompan-
ied by persecution or a well-founded fear of being persecuted
for the reasons of race, religion, nationality, membership of a
particular social group or political opinion.™
The word 'persecution* has been used in various instruments
concerning refugees but has not been defined, thus raising
serious problems of interpretation. According to the United
Nations High Commissioner for Refugees 'there is no univer-
sally accepted definition of persecution, and in fact there cannot
be one general definition for the purpose of the Statute or the
Convention'.52
Two interpretations of the concept of 'persecution' are dis-
44
cernible, namely a liberal and a restrictive view.
The liberal view interprets persecution broadly to cover any
kind of acts perpetrated on the person, whether psychological
or physical or economic, which are in themselves severe enough
to cause displeasure to the person concerned. Weis, for exam-
ple, argues that measures in disregard of human dignity may
constitute persecution.53 Vernant equates persecution with
severe measures and sanctions of an arbitrary nature which are
incompatible with the Universal Declaration of Human
Rights.54
Melander also interprets persecution to include danger to life
or liberty, including some discriminatory measures.35 He sug-
gests that violations of human rights might serve as a useful
criterion for defining persecution.
The restrictive view on the other hand equates persecution
with only deprivation of life or of physical freedom.54 Zink, for
example, argues that persecution should be equated with physi-
cal acts which may result in the deprivation of life or of physical
freedom, excluding attacks on a person's physical integrity,
unless such attacks may lead to the victim's death or imply loss
of physical freedom.57 Two decisions by the US Court of
Appeal for the Third Circuit endorsed the restrictive view,
albeit in a more liberal fashion. In Blazin v. Bouchard5* the
Court held inter alia that physical persecution should be taken
to mean 'confinement, torture or death inflicted on account of
race, religion or political view*. Then, in Dunat v. Hurney, the
same Court broadened its interpretation of persecution, but still
within the restrictive view, to cover economic measures so
severe as to deprive a person of all means of earning a liveli-
hood. The Court said:
. . .to belittle economic sanctions regardless of their
impact has, we think, to bypass the realities of everyday
life... Economic sanctions that may tend to lead to social
ostracism, or deny one an opportunity to obtain and
enjoy some of the social niceties and physical comfort
certainly is not within the ambit of that phrase. However,
there is no basis for thinking that physical persecution
requires or even connotes the use of intense physical force
applied to the body with all the dramatics of the rack and
wheeL The denial of an opportunity to earn a livelihood
. . .is the equivalent of a sentence of death by means of
slow starvation and nonetheless final because it is grad-
ual. The result is the same.. , 59
In order to resolve the controversy created by the two inter-
pretations, Grahl-Madsen suggests that reference may be made
to the uses of the term persecution in various instruments
concerning the status of refugees.60 He points out that the
International Refugee Organisation, for example, did not lay
down any standard in this respect but it was required that the
persecution must result in an actual pursuit of, or a personal
threat to, the individual concerned. The International Refugee
Organisation also considered persecution to exist in cases of,
for example, imprisonment, deprivation of work or drafting
into a disciplinary battalion.61 These views lean towards a lib-
eral interpretation of the word 'persecution'.
Reference may also be made to the Refugee Convention.
Article 31, paragraph 1, of a the Convention applies its provi-
sions to refugees coming directly from a territory where their
life or freedom was threatened. Article 33, paragraph I, of the
same Convention also speaks of territories where a refugee's life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group, or politi-
cal opinion. It is arguable that these provisions also suggest a
liberal interpretation of persecution, for not only the life of the
refugee but also his freedom, when threatened on account of the
relevant factors, may amount to persecution. In view of the fact
that the first paragraph of the Preamble to the Refugee Conven-
 THE 'BOAT PEOPLE': ARE THEY REFUGEES?
tion contains a direct reference to the Universal Declaration of
Human Rights, it is also arguable that a violation of some of the
Provisions of the Universal Declaration of Human Rights may
constitute persecution within the meaning of the Refugee
Convention.62
A liberal interpretation of persecution is to be preferred. It is
most unlikely that the drafters of the Refugee Convention
intended to interpret the term narrowly. The Refugee Conven-
tion is a humanitarian one, and should be interpreted in a way
that would reflect the purposes of the Convention.63 A restric-
tive interpretation of the word persecution would be contrary to
the spirit of the Convention. Though the Convention may
appear to favour a strict limitation of the scope of the obliga-
tions of parties to it by initially providing a cut-off date, by
limiting the Convention to events in Europe and by applying the
Convention to political refugees only, thereby excluding people
fleeing from natural disasters and famine, this fact does not
detract from the overriding humanitarian objectives of the
Convention.
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In order to qualify as a refugee, a person's fear of being
persecuted must be a 'well-founded* one. This qualification
raises a number of problems. When is a person's fear well-
founded? What is the standard for determining whether a fear is
well-founded or otherwise?
The ad hoc committee considered a fear to be well-founded
when a person had actually been a victim of persecution or can
show good reason why he fears persecution.64 According to
Melander, well-founded fear means that the fear must be sin-
cere and reasonable, not feigned or imaginary, and that there
must be a plausible danger of persecution for political reasons.*3
This implies an objective evaluation of the political conditions
in the country of origin.
The use of the words well-founded seem to suggest that it is
not the frame of mind of the person concerned that is decisive.
In other words, the determination of whether a fear is well-
founded or not must be an objective one. On the other hand,
fear may be considered as a subjective condition. In this case, an
objective determination of whether or not a person's fear is
well-founded may be unjustified. It is conceivable however that
a purely subjective standard would be subject to abuses. It
would mean that anybody who claims to have a well-founded
fear of persecution may qualify under these provisions. The
proper approach must be based on the conditions prevailing in
the country the person flees. Thus, where there are possibilities
that the person concerned is likely to become a victim of perse-
cution if he. returns to his country of nationality of habitual
residence it may be said that there is a well-founded fear of
persecution. But since it is possible that the likelihood of
becoming a victim of persecution may vary from person to
person, the proper approach must be that except in a situation
where the entire population or a whole social group is being
persecuted, the situation of each individual must be considered
sui generis by taking into account objective factors as well as
subjective considerations, including the background of the per-
son concerned.66 As Weis correctly observes, 'the circumstances
and background of the person concerned, his psychological
attitude and sensitivity towards his environment play a role as
well as the general situation in his country'.67
The finding that a person has well-founded fear of being
persecuted or that he has been a victim of persecution does not
in itself make him a refugee, unless the fear of persecution or the
persecution is for one of the reasons enumerated in Article 1 A,
paragraph 2, of the Refugee Convention. These are race, reli-
gion, nationality, membership of a particular social group or
political opinion.
Are the 'boat people' persecuted? Do they have a well-
founded fear of persecution? In interpreting 'persecution', 'well-
founded fear' and the relevant reasons in the case of the 'boat
people', it is necessary to make reference to the various factors
responsible for their exodus which have been set out earlier in
this paper.
As pointed out, among the major causes of the exodus of the
'boat people' are the effects of the post-war development and
reconstruction strategies of the Vietnamese Government,
mainly re-education of those with contrary political views,
transfer of people to new economic zones and nationalisation of
private enterprises. Do these amount to persecution?
The mere finding that certain circumstances exist in Vietnam
does notper se justify a case of persecution. These facts must be
appraised in the light of circumstances in which they arise..That
Vietnam has emerged from more than three decades of war with
accompanying destruction and devastation is a fact that must
be taken into consideration in analysing the situation of the
'boat people'. Against this background, it may be argued that
the rebuilding of Vietnam demands sacrifice and toil which
implies that the Vietnamese people would have to face hard-
ships and accept these problems, which are inevitable in a
war-devastated country that has opted for socialist policies.
That some of the post-war measures adopted by the Vietna-
mese Government may be harsh and may amount to derogation
of certain basic rights and freedoms of its citizens may be a fact.
But it may be argued that an absolute right of the individual
does not exist: to the contrary, the content of the individual's
rights and freedoms are conditioned by time and place, depend-
ing on some larger 'community interest*. The Socialist Republic
and Vietnam is committed to rebuilding the country along
socialist principles. This may involve implementing policies
that will curb all anti-revolutionary tendencies. It may also
demand the control of all means of production, distribution and
exchange, for the 'common good' of the whole society.
It should also be noted that, in recognition of the persecution
of individuals or groups by another government, there is an
element of political relativity. In this respect, governments only
recognise the existence of persecution in cases in which their
own policies or their political and economic interests are not
prejudiced by such recognition. It may therefore be said that,
generally speaking, there is no objective standard for determin-
ing whether the policies of a particular government against its
nationals amount to persecution or not.
The above arguments may be plausible but are by no means
persuasive enough. The argument that the individual must be
sacrificed for the success of the revolution in Vietnam is not
based on any legal rule and therefore cannot pass the test of
legal analysis. Also, the argument that the rights of the individ-
ual in the state are conditioned by the overall demands of
society and therefore that the state may be justified in interfer-
ing with the individual's exercise of his rights cannot be
stretched too far. It should be noted that international law has
created rights and obligations for the individual and has pro-
vided standards for the assessment of the actions of states
vis-d-vis their nationals. The United Nations Charter and the
Universal Declaration of Human Rights have provided yard-
sticks against which the actions of states may be measured.
A person who is made to undergo political indoctrination in a
remote re-education camp because he is opposed to the regime
in power may be said to have suffered persecution for reasons of
political opinion. Similarly, the person who flees for fear of
going through similar treatment may be said to have a well-
founded fear of persecution for reasons of political opinion.
Who are the victims of the re-education policy in Vietnam?
They are mainly those known or suspected to have associated
themselves with the old pro-capitalist regime. This realisation
emphasises the political nature of the re-education policy.
Though, as we saw earlier, there are conflicting views concern-
45
 B. M. Tsamenyi
ing conditions in these camps, nevertheless, it should be empha-
sised that the very fact that for political reasons, a person is
removed to a remote place, made to lose his freedom and
subjected to hard work for however short a period, may justify a
finding of persecution for reasons of political opinion within the
meaning of the Refugee Convention. It also follows that any
person with similar political opinion is most likely to develop a
well-founded fear of being persecuted.
Concerning the nationalisation policy, one may accept that
acts of nationalism carried out in pursuance of a general policy
may not necessarily amount to persecution. However, it can be
argued that nationalisation of property which does not leave the
person concerned with alternative means of livelihood may
amount to persecution, provided this is done for political rea-
sons. Emphasis must be placed on the political motivation of
the policy. In Vietnam, the people affected by the nationalisa-
tion policy were mainly those who had identified themselves
with the capitalist mode of production. On the face of it, it may
be argued that the nationalisation policy was a purely economic
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policy. It should however be noted that this seemingly economic
policy was aimed at achieving a political objective. Further-
more, the fact that those affected by the nationalisation policy
were not left to choose alternative means of employment but
rather mobilised to new economic zones, amounted to denial of
opportunity to earn a living in some other way.
It is therefore submitted that those who fled Vietnam because
their enterprises were nationalised or because they feared their
properties might be nationalised and that consequently they
would be sent to new economic zones, may be said to have been
persecuted or to have had a well-founded fear of being perse-
cuted because of their membership of a particular social group,
i.e. because they belonged to the property owning class.
Like the nationalisation policy, the new economic zone pol-
icy may initially appear to be a purely economic policy aimed at
making Vietnam 'self sufficient* in food production and at
alleviating the famine caused by natural disasters and war.
However, it appears that the determination of who goes to the
economic zone or not is to some extent influenced by political
considerations. There seems to be nothing wrong in asking
people to work. What is important is the manner in which they
are asked to work, i.e. ho w the directive is applied, to whom it is
applied and the consequences that flow from this.
It was also pointed out that some of the 'boat people' may
have left Vietnam primarily because of economic motivation.
Generally, the Conventions seem to exclude such people from
enjoying refugee status. Article 1, paragraph 2 of the Conven-
tion of 10 February 1938 provided that persons who left Ger-
many for reasons of purely personal convenience were not
included in the definition of refugees coming from Germany.
Paragraph 1 (3) of the General Principles set forth in Annex 1 to
the constitution of the International Refugee Organisation
further provided that it should be the concern of the Organisa-
tion to ensure that its assistance is not exploited by persons in
the case of whom it is clear that they are unwilling to return to
their countries of origin because they prefer idleness to facing
the hardships in the reconstruction of their countries, or by
persons who intend to settle in other countries for purely eco-
nomic reasons. Paragraph 6A (e) of the United Nations High
Commissioner for Refugees Statute also provides that reasons
of a purely economic nature may not be invoked for continuing
to refuse to avail oneself of the protection of the country of one's
nationality.
Nevertheless, the fact that a person has an economic motive
should not of itself prejudice his claim to refugee status, for
'such motives are often revealed in practice to mean that the
individual has been denied the right in his own land to earn his
46
living in peace, or in the occupation, skill or profession in which
he is qualified*.68
It is therefore relevant that, though some of the 'boat people'
may have purely economic motives, by joining the exodus, they
have put themselves in a situation where they are likely to suffer
persecution if they ever return home. In this sense, it may be
contended that they have developed a well-founded fear of
being persecuted. The relevant reasons here must relate to their
political opinions because they have, by implication, expressed
their disgust for the Vietnamese political system. It cannot be
denied that some of the 'boat people' may have left Vietnam for
the sole purpose of creating a pretext for invoking fear of
persecution. Under certain circumstances actions taken for the
sole purpose of creating a pretext for invoking fear of persecu-
tion should be sufficient to amount to a well-founded fear of
persecution. The attitude of the home government must be
taken into consideration in such cases. It is forseeable that the
government of Vietnam will apply sanctions of a persecutory
nature to any of the 'boat people'who left for purely economic
reasons but later return to Vietnam. This means that, though
some of the 'boat people' may have left Vietnam for purely
economic reasons, they have by implication put themselves in a
situation in which they may be persecuted for their political
opinions against their Government, should they return home.
In the case of the ethnic Chinese, it may be argued that with
the worsening relations between China and Vietnam, all people
of ethnic Chinese origin are likely to become objects of mist met
and targets of Vietnamese reprisals against China. That people
of ethnic Chinese origin were discriminated against was evident.
Several of the ethnic Chinese interviewed reported that, as a
result of the Sino-Vietnamese conflict, they had lost their jobs
and were not allowed to conduct any other type of business.64
There are thus sufficient grounds to argue that the ethnic Chi-
nese have suffered persecution or may have well-founded fears
of being persecuted for reasons of race and nationality.
It was also argued earlier that there are indications that some
of the 'boat people' fled to evade conscription into the army, a
move that was intensified by the war between Vietnam and
Kampuchea. Are people in this category being persecuted or do
they have well-founded fears of persecution? The issue here is
whether conscription for military service comes within the
ambit of persecution. In other words, does punishment for
evasion of military duties such as desertion or draft evasion
constitute persecution for the relevant reasons?
According to Grahl-Madsen, conscription for ordinary mil-
itary service does not come within the ambit of persecution.70
This conclusion was based on a number of French and German
decisions. However, this should not be an absolute rule. The
motivating factors on the part of the individual concerned must
be taken into consideration. If a person has conscientious objec-
tion to military service or if he deserts the army or evades
conscription on political grounds, these facts should be taken
into consideration. In the appropriate circumstances, the impo-
sition of military duties may amount to persecution within the
meaning of the Refugee Convention. Emphasis must be placed
on the nature of the government in question.
In the case of the'boat people', it should be admitted that we
lack the necessary materials to determine the motivating factors
on the part of those who fled to evade the draft. The possibilities
of conscientious objection or political reason should however
not be ruled out. Therefore, the fact that some of the 'boat
people' may be avoiding the draft does not disqualify them from
claiming refugee status until it is established that their motivat-
ing reasons do not entitle them to such status.
The lack of diplomatic protection is also a crucial determi-
nant of who is or is not a refugee. The Nansen Arrangements,
for example, make it an essential criterion that the person in
 THE 'BOAT PEOPLE': ARE THEY REFUGEES?
question did not enjoy, or no longer enjoyed, the protection of
the state of which he was a national. Similarly, Article I A,
paragraph 2, of the Refugee Convention speaks of a person who
is unwilling to avail himself of the protection of his country.
According to Simpson, 'the main characteristic of a refu-
gee . . . is the fact that he does not enjoy the protection of the
government of his country 71 ...
Thus, in order to quality as a refugee, it is not sufficient that
the person concerned is outside the country of his nationality or
habitual residence owing to a well-founded fear of being perse-
cuted for the relevant reasons. The person concerned must also
satisfy either of the two provisos in Article 1 A, paragraph 2 of
the Refugee Convention, that is he is 'unable or, owing to such
fear, is unwilling to avail himself of the protection' of the
country of his nationality, or in the case of a stateless person,
that he is 'unable, or owing to such fear, is unwilling to return' to
the country of his former habitual residence.
On the other hand, a person who is able and willing to avail
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himself of the protection of his country of nationality or, alter-
natively, a person who is able, but unwilling to avail himself of
such protection, his unwillingness being motivated by some
consideration other than the relevant reasons set out earlier,
may not qualify as a refugee.72
As the factors that led to exodus of the 'boat people'are still
prevalent, they may still be liable to persecution should they
return home. It is therefore submitted that the 'boat people*
must be considered to be 'unwilling' to avail themselves of the
protection of their country of nationality. Unless there is a
change of government or policies on the part of the Vietnamese
Government, those who hold opinions contrary to that of the
Government will, in all probability, be victims of persecution.
What one cannot say with certainty is whether the'boat people'
should be considered to be unable to avail themselves of the
protection of the Vietnamese Government. In other words, it is
doubtful whether the 'boat people' have lost their nationality or
whether they are not capable of consular protection. Whatever
be the case, this is immaterial in so far as we have established
that they are 'unwilling' to avail themselves of the protection of
their country of nationality. Even if the 'boat people' still retain
the nationality of Vietnam, the said nationality may be ineffec-
tive because the protection of their country of nationality is
denied to them. In cases where there are stateless persons
amongst the group of'boat people*, such persons may be placed
in the same category as 'boat people* possessing Vietnamese
nationality.
It was suggested earlier in the paper that the possibility exists
that some of the 'boat people* may be infants accompanying
their parents or that some may be wives or husbands accompan-
ying their spouses and that these people may not necessarily be
victims of any persecutory acts or have well-founded fear of
being persecuted. It is therefore imperative to clarify the posi-
tion of such people. The Refugee Convention does not make
any reference to the members of the refugee's families. The ad
hoc committee and the Conference of Plenipotentiaries how-
ever touches briefly on this subejct. According to the ad hoc
committee,
Members of the immediate family of a refugee should in
general, be considered as refugees if the head of the family
is a refugee as here defined. Also, such members are to be
regarded as refugees if the conditions set forth in part A
(of Article 1) apply to them even if the head of family is
not a refugee.73
In its final Act the Conference of Plinipotentiaries also made
the following recommendations:
Considering that the unity of the family, the natural and
fundamental group unit of society, is an essential right of
the refugee, and that such unity is constantly threa-
tened,.. . Recommends Governments to take the neces-
sary measures for the protection of the refugee's family,
especially with a view to:
1) Ensuring that the unity of the refugee's family is main-
tained particularly in cases where the head of a family has
fulfilled the necessary conditions for admission to a par-
ticular country.
2) The protection of refugees who are minors, in particu-
lar unaccompanied children and girls, with special refer-
ence to guardianship and adoption.74
The recommendations noted above seem to suggest that the
dependants of a refugee are entitled to refugee status irrespec-
tive of whether they individually satisfy the definition of a
refugee or not.75 It is therefore submitted that the same conclu-
sion must apply mutatis mutandis with respect to the 'boat
people*. If they are found to be refugees, then their dependants
must also be considered the same.
Conclusion:
In the light of the foregoing considerations, the conclusion is
that the 'boat people'must be regarded as proper refugees under
international law. The view that they are not, or that not all of
them are, refugees is not supported by legal analysis. Professor
Johnson was right when he stated that 'so far as the 'boat
people' are concerned, it may well be argued that a person must
have a well-founded fear of being persecuted if he is willing to
part with a substantial amount of property for the privilege of
being allowed to undertake a hazardous journey across the
ocean in a small boat'.76
1. This paper is a revised version of part of an earlier work: The Boat People and
International Law. (Research Paper No. 14, Centre for the Study of
Australian-Asian Relations. Griffith University, 1981). 1 am grateful to the
Centre for granting me permission to publish part of that work in this form. I
am also grateful to William Maley for reading through this article and making
critical comments on it. All the shortcomings of the paper however remain my
own responsibility.
2. Carlyle, A. Thayer 'The Refugee Exodus from Vietnam: Background Fac-
tors'. A paper delivered to the Conference on the Indochinese Refugee Situa-
tion, at the Australian National University, 30 July 1979.
3. Bruce Grant, The Boat People. (Penguin Books, Ringwood, 1979), P. 21.
4. ibid. p . 19.
5. Linda Garret, 'A Visit to a Re-Education Camp'. South East Asia Chronicle.
68 (December 1979), p. 19.
6. Carlyle A. Thayer, op. cit.
7. Carlyle A. Thayer 'Development in Vietnam: The Fourth National Congress
of the Vietnam Communist Party'. Asian Profile. (June 1979), pp. 275-82. See
also Huynh Kim Khanh 'Vietnam, Industrial Development in a Time of
Crisis'. South East Asian Affairs. VII (1979).
8. Quoted from ibid.
9. Bruce Grant, op. cit. pp. 23-6.
10. ibid.
11.ibid.
12. ibid.
13. M. Osborne 'Indo-Chinese Refugees'. Current Affairs Bulletin. Vol. 56 No. 6
(November 1979), p. 18.
14. See, The Hoa in Vietnam Dossier (Foreign Languages Publishing House,
Hanoi, 1978), pp. 80-90.
15. See Milton Osborne 'Vietnam and the Indochina Cockpit'. Current Affairs
Bulletin. (May 1979) p. 10.
16. Bruce Grant,op. cit. p. 87.
17. Milton Osbome 'Indo-Chinese Refugees', op. cit.
18. D. R. Sar Desai 'Vietnam's Quest for Security' in Sudershan Chawla and D.
R. Sar Desai (eds.) Changing Patterns of Security and Stability in Asia
(Praeger Publishers, New York, 1980), p. 224 ff.
19. The Hoa in Vietnam Dossier, op. cit.. pp. 80-2.
20. ibid. pp. 24-6.
21. The text of the agreement cannot be located in any official sources. However,
fora discussion of it, see Hungdah Chiu' China's Legal Position on Protecting
Chinese Residents in Vietnam'. American Journal of International Law. Vol
74(1980), p. 685 ff.
22. See D. R. Sar Desai, op. cit.. p . 236. For a detailed account of the Vietnamese
point of view, see The Hoa in Vietnam Dossier, op. cit.
47
 B. M . Tsamenyi

23. D. R. Sar Desai. op. cit. Nations High Commissioner for Refugees stated that 'the fact that an asylum
24. Murray Hiebert 'Vietnam's Ethnic Chinese'. South East Asia Chronicle. 68 seeker has paid for his passage out does not prejudice his status as a refugee,
(December 1979), p. 22. people have been paying to escape from oppression for centuries and others
25. D. R. Sar Desai, op. cit. p. 236. have profited thereby for as long'. This statement was made at the Conference
26. Murray Hiebert op. cit. p. 22. on Indo-Chinese Refugees, op. cit.
27. Huynh Kim Khan 'Restructuring the Economy of South Vietnam'. South 49. Jacques Vemant, The Refugee in the Post World War. (Allen and Unwin.
East Asian Affairs 1976: D. R. Sar Desai op. cit.. pp. 216-9; Carlyle A. Thayer London, 1953), p. 5.
'Vietnam: Beleagured Outpost of Socialism'. Current History (December 50. ibid p. 6.
1970), p. I65ff. 51. See Article 1A(2) of the 1951 Refugee Convention. (Emphasis added).
28. Interviews conducted by the Centre for Study of Australian-Asian Relations 52. Quoted from G. Melander, Eligibility Procedure in Western European States
as part of the Centre's research into Vietnamese migration to Australia. (1976), p. 22.
29. Bruce Grant, op. cit. p. 108. 53. Paul Weis, The Concept of the Refugee in International Law (1960), p. 22.
30. ibid. p. 109. (See UN Document HCR/INF/49).
31. Far Eastern Economic Review, 15 June 1979, pp. 24-6. 54. Jacques Vernant, op. cit. pp. 7-8.
32. ibid. pp. 21-4. 55. G. Melander, op. cit. p. 7.
33. Bruce Grant, op. cit., p. 109. 56. ibid. p. 193.
34. Quoted from Bruce Grant, ibid. p. 108. 57. Cited from Grahl-Madsen op. cit., p. 193.
35. The Economist. 21-7 July 1979. 58. (1961) 2867 2d. p. 507.
36. ibid. 59. 297 F29, p. 744.
37. ibid. 60. Grahl-Madsen, op. cit. p. 194.
38. Grahl-Madsen. A. The Status of Refugees in International Law. Vol. 1 (A. W. 61. ibid.
Sijhoff, Leyden 1966), p. 73. 62. See, for example, articles 4,5,9,12 and 17 of the Universal Declaration of
39. The following are some of the treaties concluded to regulate the status of Human Rights.
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refugees. The arrangement of July 5, 1922-13 League of Nations Treaty Series
p. 237; the Convention relating to the International Status of Refugees,
1933-159 League of Nations Treaty Series p. 199; the 1938 Convention on the
Status of Refugees coming from Germany 192 League of Nations Treaty
Series p. 59; the Constitution of the International Refugee Organisation,
December 15, 1946-18 United Nations Treaty p. 3; the Refugee Convention
of 1951-189 United Nations Treaty Series; the OAU Convention Governing
the Specific Aspect of Refugee Problems in Africa—International Legal
Materials. Vol. 8 (1969) p. 1288.
40. Article I(A) (1) of the Convention.
41. See UN Document E1850. 8A Conf/2/SR.3, pp. 9-10.
42. UN Doc. E/AC. 32/5 (E1618). p. 39.
43. The Hoa people from Northern Vietnam are Vietnamese nationals under the
1955 agreement between China and Vietnam. Those of them who crossed the
border into China and elsewhere are outside the country of their nationality.
There is however a dispute between China and Vietnam as to the national
status of Hoa in the former area of South Vietnam.
44. Grahl-Madsen. op. cit. p. 155.
45. ibid. p. 157.
46. On this, see the Nottebohm case (l955) I.C.J. Report where the court empha-
sised the principle of "effective nationality" as an aid to determining the
national status of a person whose nationality is in doubt.
47. Grahl-Madsen. op. cit. p. 94.
48. D. H. N. Johnson 'Refugees. Departures and Illegal Migrants'. University of
Sydney Law Journal. Vol. 9 (1980). P. 23. (Emphasis added). In answer to the
allegation that some of the 'boat people' are not refugees because they had
paid or bribed their way out of Vietnam, Godwin-Gill. Legal Advisor, United
63. This is supported by Article 31 (1) of the Vienna Convention on the Law of
Treaties.
64. U.N. Document E/I6I8 (E/AC. 32/5), p. 39.
65. G. Melander. op. cit., p. 13.
66. See Weis, op. cit., pp. 20-1.
67. ibid.
68. The statement was made by Guy Godwin-Gill. Legal Adviser. UN High
Commissioner for Refugees at the Conference on Indo-Chinese Refugees, op.
cit.
69. Bruce Grant, op. cit. p. 88.
70. Grahl-Madsen. op. cit. p. 231.
71. J.Simpson. The Refugee Problem. (Oxford University Press, London, 1939),
p. 229.
72. Grahl-Madsen. op. cit., p. 254.
73. UN Document E/AC. 32/5 (E 1618, 40). See also Grahl-Madsen, op. cit., p.
413.
74. UN Document A/CONF/2/108. See also Grahl-Madsen, op. cit.
75. The Afro-Asian Legal Consultative Committee, at its eighth Session in Bang-
kok in 1966. also recommended that 'the dependants of a refugee shall be
deemed to be refugees'. See Melander and Nobel, International Instruments
on Refugees in Africa. (Scandinavian Institute of African Studies, Uppsala.
1979). p. 374. Reference may also be made to the Universal Declaration of
Human Rights. Article 16 (3) provides that the family is the natural and
fundamental group unit of Society and is entitled to protection by Society and
State'. For a more extensive discussion of the legal status of the dependants of
a refugee, see Grahl-Madsen. op. cit.. p. 412 ff.
76. D. H. N. Johnson, op. cit. p. 54.

Volume 58 No. 162

THE E C O M O M I C R E C O R D September 1982

Articles F.H. GRUEN The Welfare Expenditure Debate: Economic Myths of the Left and the Right 207
ROBERT HYDE and JAMES R. M ARKUSEN Exploration Versus Extraction Costs as Determinants of Optimal
Mineral-Rights Leases 224
J.H. CASSING and A.L. HILLMAN State-Federal Resource Tax Rivalry: The Queensland Railway and the
Federal Export Tax 235
C D . THROSBY Economics and the Arts: A Review of Seven Years 242
CHRISTOPHER C. FINDLAY and ROBERT L. JONES The Marginal Cost of Australian Income
Taxation 253
W.J. McKIBBIN A Comparison of Four Macroeconometric Models of the Australian Economy 263
DAVID C.L. NELLOR A Note on Retrospectivity and the Tax System 283
Comment JOHN BURGESS and GREG WALKER Returns to Scale in the Australian Life Insurance Industry:
A Comment 290
Reviews (see inside front cover) 293
News and Notices 298
Books Received 299
Notes to Authors (see inside back cover)
THE ECONOMIC SOCIETY OF A USTRALIA AND NEW ZEALAND
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