#2019-1

- Hayoung Lee, Yonsei University (Justice and Civil Leadership)

China

The People's Republic of China (hereinafter, China) shares a border with North Korea and naturally is the first defection destination. While no exact number of North Korean defectors can be identified due to the lack of access to data in mainland China, it is estimated to be between 20,000 to 40,000.[1] According to the Ministry of Unification of South Korea, the number of defectors in South Korea has been increasing steadily from 2005 to 2012. Recently, tighter border control and more active repatriation and crackdowns by Chinese officials are making defection harder than before.[2] Many international organizations and NGOs have been criticizing the lack of legal protection and human rights violations towards the North Korean defectors – many of whom are women and children desperately seeking refuge.

However, the Chinese government has consistently maintained the position that North Korean defectors are economic migrants rather than refugees and has rejected all intervention from the international society.[3] While the major reason for defection is starvation and economic difficulties, North Korean defectors should not be treated like illegal economic migrants given its sufficient evidence of persecution – including ideological re-education, forced labor, and even death – upon their return to their homeland after defection.[4] They qualify as refugees or refugees sur place at worst.[5]

Despite the obvious need to provide legal protection to the defectors and to adhere to the non-refoulement principle in accordance with international law, China has been juggling its domestic laws, bilateral agreements with North Korea and international laws in its own interest. China picks and chooses which principles of law to apply depending on the circumstance and its political-economic interests.[6] Instead of enforcing consistent and coherent policy on the North Korean defectors, China treats them as a useful political tool. In this episode, we will explore the legal and political aspects of North Korean defector issue in China and the dilemma between state sovereignty and principles of international law.

Legal Aspects 

Domestically, the Chinese government can legally repatriate North Korean defectors—since most if not all of them do not have permission from either Chinese or North Korean governments—under the Penal Code 8 on the Measures of Imprisonment and Repatriation for Illegal Border Crosser and Entrants, enacted in 1979 and amended in 1997.[7] Since the defectors are physically residing in Chinese territory, the Chinese government has sovereign power and jurisdiction to take appropriate measures to illegally residing aliens, including the defectors.

Internationally, China has signed two bilateral agreements with North Korea: China-North Korea Mutual Extradition Agreement—also known as the Illegal Immigrants Repatriation Agreement in the 1960s—and the Agreement on Security in the Border Areas in 1986.[8] Based on these agreements, China is obliged to repatriate any North Koreans who are found in China without legal permission from North Korea.[9] These domestic laws and international agreements provide legitimacy to China’s brutal suppression and repatriation of North Korean defectors who will face serious threats to life upon their return.

Such a policy is not consistent with its multilateral international obligations. China signed the 1951 Refugee Convention and its amending Protocols in 1982 and the Torture Convention in 1988.[10] According to the United Nations Human Rights Committee, General Comment No. 20, China, as a member state of conventions above, is obliged to adhere to the principle of non-refoulement, which prohibits returning of individuals who may face a serious threat to life in the country of origin.[11]

Political Aspects 

Beyond the legal obligation, China also has three main political motivations in repatriating North Korean defectors: 1) fear of regime collapse of North Korea; 2) rise of ethnic independence movement by ethnic Korean Chinese in Yanbian region; 3) the equity issue with other Southeast Asian refugees.

First, the most important reason is the fear of regime collapse in North Korea as a result of the wide acceptance of defectors in China. Without the repatriation and suppression of the defectors, a massive influx of defectors will seek refuge in China. Such mass migration can easily lead to regime collapse in North Korea and absorptive reunification by South Korea, which is a major ally of the U.S. Larger U.S. influence in the Korean peninsula and further Asia is the last thing China wants to happen. Moreover, China has neither the capacity nor interest in being burdened with millions of North Korean refugees in case of regime collapse.[12]

Second, China is concerned with the possible rise of ethnic independence movement in the northern region with an increasing number of defectors. Northern China is the main residence area for the ethnic Koreans. When the North Koreans defect, many of them first settle in this region, given its cultural and linguistic familiarity. The Chinese government fears that an increasing number of North Korean defectors in this region could lead to ethnic nationalism and independence movement, causing social fragmentation.[13]

The last reason why China does not want to acknowledge North Korean defectors as refugees is because of the equity issue with other refugees. Historically, China has had many refugees from its neighbors, many of whom have not automatically been accepted as refugees. Accepting North Korean defectors could give the impression that China is a safe haven for refugees, especially to those from Southeast Asia.[14]

The Dilemma

The dilemma in China is between state sovereignty and the principles of international law such as non-refoulement and protection of refugee sur place. The reasons why pressing China with its obligations under international law are: 1) international principles lack binding power and state sovereignty can override these principles; 2) China has a history of hosting refugees; 3) not all countries fully adhere to all of the international principles.

Although China is a member state of the 1951 Refugee Convention and Torture Convention, international bodies such as the United Nations Human Rights Council’s Commission of Inquiry cannot force a sovereign state to adopt a particular policy.[14] While the international community can publicly condemn such wrongful acts of a state, a sovereign state can enjoy its right to make its own policies.

Another problem of blatantly criticizing China on the human rights issue is that China has been hosting refugees from the neighboring countries.[15] China hosted 300,000 Vietnamese refugees during the Sino-Vietnamese War in 1979 and those from Kokang region, Myanmar in 2009.[16] Moreover, not all countries uphold their obligations under international law. Even Thailand, which is very cooperative with the South Korean government on the North Korean defector issue, repatriated Uighur—a Muslim Chinese man—to China. While states are encouraged to adhere to international principles at all times, such practice is rare in reality. Most, if not all, state decisions are influenced by political and economic motives.

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[1] Benjamin Neaderland, “Quandary on the Yalu: International Law, Politics, and China’s North Korean Refugee Crisis,” Stanford Journal of International Law 40, no. 1, (2004):  143-161

[2] Taewan Eom and Taeshik Kim, “A Qualitative Study of the Human Rights of Female North Korean Defectors Living in China,” (2016): 56-57

[3] Su-Mi Jeon, “China’s Policy on Forbily Repatriating North Korean Defectors - China’s North Korean Defectors Policy Analysis through Comparison between Cases in China and Thailand” (2016): 291-292

[4] Eric Yoon Joong Lee, “National and International Legal Concern regarding Recent North Korean Escapees” (2001): 145-146

[5] Elim Chan and Andreas Schloenhardt, “North Korean Refugees and International Refugee Law” (2007): 225

[6] Sang Yoon Yeo, “Status and Human Rights Situation of North Korean Defectors in China” (2012): 51

[7] Yeo, 2012, p. 65 

[8] Yeo, 2012, p.72

[9] Neaderland, 2004, p.140-150

[10] Jeon, 2016, p.298

[11] Whiejin Lee. "The Status of North Korean Refugees and their Protection in International Law." (2016), p. 56-59

[12] Chan et al, 2007, p. 25-30

[13] Yeo, 2012, page 70-72

[14] Youjin Eom, “North Korean refugees in China : UNHCR's challenges and prospects” (2004): p. 56-60

[15] Jeon, 2016, p. 306

- Jeaneyoung (Jen) Kim, Yonsei University (International Studies)

On November 13th, 2017, a soldier from the Democratic People’s Republic of Korea (hereinafter, DPRK) was shot multiple times crossing the border into the Republic of Korea (hereinafter, ROK). It is estimated that the number of North Korean defectors (hereinafter, NK defectors) since 1953 is somewhere between 100,000 and 300,000.[1] These defectors risk their lives running away from their motherland for reasons such as extreme poverty, ideological persecution, and oppression in various areas of life. They are risking their lives in all senses of the term because not only is escaping the territorial boundaries of DPRK almost impossible and dangerous, but finding a shelter—permanent or temporary—elsewhere is also a punishing task. The obstacles NK defectors face once they escape DPRK are rooted in two major issues by nature: 1) the lack of a universal classification of NK defectors that leave room for independent interpretation by nations, and 2) the varying ways in which different systems of law perceive and deal with NK defectors.

Through the four articles, this series will delineate the incoherency and inconsistency of the definition of North Korean defectors throughout different legal systems and examine how this makes the defectors vulnerable to arbitrary treatment by the hosting state. Following this review, it will make the argument that NK defectors should be universally and legally considered as refugees or at least refugees sur place. For this purpose, the actors investigated will be the People’s Republic of China (hereinafter, China), ROK, DPRK, and the international community.[2] To clarify, the review of the international community will include not only international treaties and conventions regarding NK defectors, but also that of the legal frameworks of neighbouring states of the Korean peninsula such as Thailand, Mongolia, Vietnam, and Cambodia which serve as transit countries in the defection routes of the NK defectors.

This first article reviews the international legal framework on refugees, mainly focusing on the 1951 United Nations Convention Relating to the Status of Refugees. The second article explores the legal and political aspects of China’s way of dealing with NK defectors, and the dilemma between China’s national sovereignty and its commitment to international law. The third article takes a close look at the two main legal and political problems in South Korean legislations that put NK defectors in a precarious state: their legal citizenship and their term of address. The fourth and final article problematizes the lack of domestic laws in neighbouring states of the Korean peninsula such as Thailand, Mongolia, Vietnam, and Cambodia which serve as transit countries in the defection routes of the NK defectors that make the defectors vulnerable to arbitrary interpretation of their legal status based on individual political interests. It also offers recommendations for future actions to better protect NK defectors and provide a safe environment for them to recommence their lives.

International Legal Frameworks on Refugees

The most overarching international legal framework on refugees is the 1951 United Nations Convention Relating to the Status of Refugees (hereinafter, 1951 Refugee Convention).

With 144 signatories as of 2019, the convention serves as an outline for who qualifies as a refugee is, the rights of those who are given asylum, and the obligations of nations to grant and after granting asylum. Article 1 of the Convention demarcates the definition of the term “refugee” to a person who is unable or unwilling to return to his or her country of his or her nationality “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[3] On the subject of refugees who have entered or are staying in a country unlawfully, Article 31 dictates that signatory states “shall not impose penalties… on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization” as long as they present the justified reasons for their “illegal entry or presence.” The above two articles highlights the international perception of refugees and how they should be treated under difficult circumstances considering their situation. Moreover, Article 33: Prohibition of Expulsion or Return articulates the principle of non-refoulement which comes from the French term refouler which means to make people surrender or repel them, and bars states from expelling refugees from within their jurisdiction or forcefully returning them to their places of origin when it is highly likely that he or she would be subjected to severe punishment or even violations of human rights.[4] The principle of non-refoulement, along with the aforementioned two articles, is a significant element of the international legal framework on refugees in the conversation on NK defectors.

Presenting the Issue of Definition

As previously mentioned, this series will discuss the issue of inconsistency in the categorization of NK defectors internationally. The following articles expand on how different states classify NK defectors; through the series, the authors will illustrate why the universal definition of NK defectors should be from now on, refugees sur place. According to the handbook issued by the Office of the United Nations High Commissioner for Refugees, a “refugee sur place” is “a person who was not a refugee when he left his country, but who becomes a refugee at a later date.”[5] Refugees sur place are not necessarily refugees when they expatriate; they become a refugee during their time abroad due to a justifiable sense of fear that they will be persecuted if they return to their country of origin. This is precisely the situation of NK defectors that is often overlooked. Article 233 of the Criminal Law of DPRK dictates that anyone who illegally crosses DPRK borders will be punished by “short-term labour” from two years to five years. Article 245 adds that if a North Korean citizen were to have “[damaged] the prestige of the Republic in foreign countries,” they would be sentenced to “reform through labour” for a period between three years and eight years. According to anecdotes from NK defectors, defectors are put into perilous positions if they were to return—forcefully or voluntarily—as they would subject to punishments in the forms of forced labour, torture, or even capital punishment in detention centers, labour camps, or political prisons.[6] These laws clearly stating the intent to legally penalise defectors and the stories from defectors regarding their difficult circumstances should serve as evidence for “well-founded fear” of persecution in an assessment of persons attempting to determine whether they qualify as refugees sur place.[7] That being the case, the authors strongly argue that in order to protect NK defectors from threats such as displacement, exploitation, and persecution, the international society and its laws should declare NK defectors to be classified as refugees sur place.

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[1] “Why This NGO Was Founded,” North Korean Refugees, accessed on August 1st, 2019, http://www.northkoreanrefugees.com/aboutus.html.

[2] China, ROK, and the international society as a whole are the actors that play the largest roles in the defecting routes of NK defectors and in the process of NK defectors finding a place of refuge outside DPRK.

[3] Convention Relating to the Status of Refugees, Geneva, July 28, 1951, United Nations Treaty Series vol. 189, no. 2545, Article 1, available at https://www.refworld.org/docid/3be01b964.html.

[4] United Nations High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, November 1997, available at https://www.refworld.org/docid/438c6d972.html.

[5] United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, reedited on January 1992, Paragraph 94, available at https://www.unhcr.org/4d93528a9.pdf.

[6] Harrison Jacobs and Pat Ralph, “‘Treated Like Animals’: A North Korean Defectors Tells the Brutal Story of What Happened to Him After He Was Caught Trying to Escape,” Business Insider, published on January 15, 2018, https://www.businessinsider.com/what-happened-when-north-korean-defector-tried-to-escape-2018-6.