#uls

on the outside, to everyone else - to the youth mall aunties, to wonyoung at first, etc - donghee is the bright sun, the smiley cafe owner, the sweet young man; hotae is the brooding moon, the bad boy, the one with tattoos and bruises, the high school dropout.

but on the inside? between them? donghee is the moon, aloof and cold, the one with secrets and trauma and things no one can see. hotae is the sun, warm and persistent, uncomplicated, the one who gives sunflowers and picks up on every smile.

(hotae has trauma of his own, certainly, but he's determined not to let his baggage weigh them both down. and donghee isn't always cold, he's just felt alone for so long, safe only where no one can reach him.

and when i taste your love, my lips feel numb

- 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.

—————————————————————————————–

[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

Tagged by @writingonesdreams

Rules: List 10 words/phrases that have something to do with your work(s) in progress and then tag 10 people to do the same.

Since I’ve done a couple other WIPS I’ll do one of my less talked about works, Unpopular Love Story

Marriage Plotting

Birthday Party

Highway Men

Physical Therapy

PTSD/Depression

Pull Yourself Up By The Bootstraps

House fire

Attempted kidnapping

Illness

Murderer