Flouting International Law
In 1951, UN member states gathered to ratify the 1951 Convention Relating to the Status of Refugees (the “1951 Convention”). The 1951 Convention stemmed from the millions of refugees and displaced persons that still roamed Europe, six years after the end of World War II. The two most fundamental, and hence sacred, parts of the 1951 Convention are the definition of a refugee and the principle of non-refoulement. Article 1 defines the term “refugee”:
[T]he term “refugee” shall apply to 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.
Thus, according to international law, most North Korean defectors possess prima facie claims to refugee status; they clearly (i) have a “well-founded fear of being persecuted,” at a minimum “for reasons of … membership of a particular social group,” and (ii) are “unable or, owing to such fear … unwilling to return to it.”
For its part, on 24 September 1982, China acceded to the 1951 Convention (and its associated 1967 Protocol), heralding it as the “Magna Carta of international refugee law,” and stating that “The Convention is [a] candlelight of hope in the dark to the helpless refugees … [it] serves as a guide to action to people who are engaged in humanitarian work of protecting and assisting refugees.”
Accordingly, pursuant to the 1951 Convention, as host country for the refugees China is obligated:
- To accord refugees the right to choose their place of residence and to move freely about (Article 26);
- Not to impose penalties, on account of their illegal entry or presence, on refugees who … enter or are present in their territory without authorization (Article 31);
- To allow refugees a reasonable period and all the necessary facilities to obtain admission into another country (Article 31);
- Not to expel or return (refouler) a refugee (Article 33); and
- To cooperate with UNHCR in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the 1951 Convention (Article 35).
China’s answer is simple: not even one of the North Koreans is a refugee, and thus not subject to the rights accorded refugees under international law. Instead, China maintains that every North Korean national within its borders is an “illegal border crosser” and “economic migrant,” and thus eligible for refoulement pursuant to a border security agreement with the DPRK. There are at least five flaws in this argument:
- International instruments prevail in the event of conflict between the obligations of the UN members under the UN Charter and their obligations under any other international agreement (UN Charter, Article 103) or any national law (1951 Convention, Article 8 and Article 40,1).
- According to the Universal Declaration of Human Rights, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Article 14) and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” (Article 15)
- China has ignored the North Koreans’ prima facie case for refugee status. And, clearly, there is no prima facie evidence to support China’s case that none is a refugee.
- It is incongruous that women and children, who represent 60-70% of the North Koreans, came to China seeking work, as economic migrants do.
- China continues to arrest North Koreans trying to leave China.
Indeed, the Chinese Government has accepted that “an international human rights agreement…is binding under Chinese law and China must honor the corresponding obligations. … In the event of discrepancies between domestic law and an international human rights agreement … the international agreement will take precedence.”
Ultimately, Chinese policy toward the refugees is most probably strategic in nature. Some observers believe that if China were to comply with its obligations, it would trigger massive flows of refugees from North Korea numbered in the millions, which could lead to the collapse of the Kim regime. Arguably, China prefers containment of Kim, rather than collapse, which would put a unified and democratic Korea (and possibly US troops) along its border. Noting the contrary in other socialist regimes, like Viet Nam and Cuba, most observers believe, however, that this “East German” model of collapse is completely wrong, that massive defections of the hostile class would actually strengthen the Kim regime instead because there would be fewer mouths to feed.