Following adoption of the Universal Declaration of Human Rights, the UN set about creating the Office of the UNHCR, which today has 5,000 personnel in 120 countries to protect 20 million refugees with a $1 billion annual budget (25% of which is paid by the US). As outlined by the 1951 Convention and its Statute, the UNHCR has two primary functions: “to protect refugees and to promote durable solutions to their problems.”
In 1999, UNHCR conducted a mission to the Sino-DPRK border and determined that some North Koreans were indeed refugees. China reprimanded UNHCR for this action and has since denied them permission to travel to this area. This is in direct violation of the UN Charter, the 1951 Convention, and the Branch Office Agreement dated 1 December 1995 between the Chinese Government and UNHCR, which states in Article III, Section 5: “In consultation and cooperation with the Government, UNHCR personnel may at all times have unimpeded access to refugees and to the sites of UNHCR projects in order to monitor all phases of their implementation.” Officially, China states that it “enjoys good cooperation with the UNHCR.”
Though UNHCR must adhere to the laws of its host country, arguably, it has not done everything within its authority to fulfill its mandate vis-à-vis the North Koreans. For example:
- From 1999 until September 2003, not one reference to North Koreans appears in the UNHCR annual reports to the Economic and Social Council and the UN General Assembly. Finally, on 29 September 2003, before the 54th UNHCR Executive Committee, High Commissioner Lubbers reported that “An analysis … concludes that many North Koreans [in China] may well be considered refugees.”
- Since being limited to its staff office in Beijing in 1999, UNHCR officials have chosen not to defy China’s prohibition and go to the border region.
- UNHCR has not exercised its legal rights to force China’s compliance. For example, Article XVI of the Branch Office Agreement states that “Any disputes between the Government and UNHCR arising out of or relating to this Agreement shall be settled amicably by negotiation or other agreed mode of settlement. If this fails, such a dispute shall be submitted to arbitration at the request of either Party.”
In his letter to Sen. Lugar, High Commissioner Lubbers further argues:
Some NGOs have suggested that UNHCR seek binding arbitration with China on the issue of North Koreans. UNHCR has indeed assessed this possibility, but believes that the 1951 Refugee Convention, which is an international treaty binding State Parties, including China, is a preferable legal instrument to assure the protection for those who need it.
Indeed, Article 38 of the 1951 Convention states that “Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.”
To date, UNHCR has not exercised either of these legal clauses, nor has it prevented the refoulement of even one North Korean refugee.