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North Korea: Witness to Transformation

Chinese Repatriation of North Korean Refugees

by | July 7th, 2014 | 06:13 am
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In Witness to Transformation, and repeatedly in this blog, we have argued that most North Koreans crossing the border into China should be considered refugees (some exception might be made for the very small numbers that seek to move back-and-forth across the border without permission). Our argument is simple, and does not rest on the additional grounds provided to those that are directly persecuted:

  • North Korean criminalizes unauthorized exit from the country (in violation the Universal Declaration of Human Rights (Art. 13, 2) and the International Covenant on Civil and Political Rights (Art. 12, 2-4);
  • North Korea routinely incarcerates and punishes those who return or are returned, often brutally;
  • As a result, North Koreans crossing the border have a “well-founded fear of being persecuted” for reasons of political opinion, namely, the political opinion that they should be free to leave—and re-enter—their own country.

China has consistently refused to accept these and other legal arguments on behalf of the North Korean refugees, arguing that they should be considered economic migrants, that China’s actions are warranted on security grounds, and crossing the border is a criminal matter. Moreover, they have forcibly returned North Korean refugees, cooperating with North Korean authorities in doing so. Yet to date, UN bodies and agencies have been reluctant to press the issue.

That has now changed, and quite dramatically. The UN Commission of Inquiry (COI) directly and strongly implicates China in aiding and abetting North Korea’s ill-treatment of North Korean refugees, even suggesting that China may be complicit in committing crimes against humanity.

In a detailed treatment of the issue for The International Journal of Korean Studies (.pdf here) Roberta Cohen offers a detailed analysis of the evolution of the issue. Among her key points:

  • Until the CoI, the UN rapporteurs’ reports were cautious about extending their reach beyond North Korea, and were fearful that China might rescind its support for the process if they did; only the UN treaty bodies, such as the Committee on the Rights of the Child, called China out.
  • The game began to change when UN High Commission for Human Rights Navi Pillay not only supported the creation of the CoI but specifically mentioned forced repatriations;
  • The CoI has now put on record the many different dimensions of this issue, including not only the forced repatriations themselves but issues such as trafficking, sexual abuse, and the status of children born to North Korean-Chinese marriages.
  • A handful of Chinese academics, as well as participants in social media, have started to question official arguments providing a possible domestic political basis to build on.

Cohen concludes by talking about the way forward, and the task of trying to convince the Chinese government to consider a change of heart. As a close observer of UN processes, she provides a number of concrete suggestions about how member states, the UNHCR and the Secretary-General might get more involved. Several of her more interesting ideas include convening of multilateral and bilateral dialogues with China on the issue, getting parliaments involved in passing resolutions on the issue and even engaging social media. We are skeptical that China is likely to move on this issue, in part because it carries much broader implications for China’s own human rights practices. But change in the human rights domain is slow-moving, and this seems like a place to start that is on surprisingly strong legal footing.

 

Witness to Transformation Posts on the CoI

 

Comments (5)

Josh Stanton at One Free Korea has also brought attention to the group of 11 North Koreans detained in China just prior to the Xi visit; see http://freekorea.us/ (July 8) for links. He concludes:

“Whether Park invokes the agreement on the refugees’ behalf, and how Xi reacts, will be a test of the quality and the extent of where Park’s conscience ends, and Xi’s begins. Eleven lives hang in the balance.”

Stephan Haggard July 9, 2014 | 6:27 pm

Reply

  • Pingback: UN seeks to persuade China to end forced repatriations to North Korea | Kronosim

  • The following comment is a response from Roberta Cohen:

    “The new consular agreement between the PRC and South Korea encompasses the citizens of both countries but China, it should be underscored, does not recognize North Koreans as being dual nationals or citizens of South Korea (the South Korean constitution notwithstanding). If China recognized North Koreans as also being South Korean, it essentially would be acknowledging that the Korean Peninsula is de facto or de jure under South Korean rule, and the political consequences would be huge.

    At the same time, the agreement can open a door. In the past, UNHCR officials have pointed out at different international meetings that North Koreans in China can avail themselves of the protection of South Korea, since South Korea offers them citizenship. Under the Refugee Convention, persons who can avail themselves of the protection of a country of which they are also nationals are not considered refugees. But to my knowledge, and it’s possible I could be mistaken, neither UNHCR nor South Korea has ever made the argument to China that those exiting from North Korea illegally are in fact South Korean citizens and that everyone in North Korea is a South Korean national. What they have told China is that North Koreans can be protected by South Korea under its constitution. It will be interesting to see whether or when the agreement ever becomes the basis for a new interpretation of Korean citizenship.”

    Kevin Stahler July 7, 2014 | 2:56 pm

    Reply

    Even though in their constitution, South Korea claims all of the Korean peninsula as theirs, and people living in North Korea their citizens, it starts to get murky in recognizing them as ROK citizens (Not good for academics, but Wikipedia describes it aptly: https://en.wikipedia.org/wiki/South_Korean_nationality_law). ~2 years ago, South Korea tried to pass a law re-emphasizing North Korean citizens who have escaped the DPRK as ROK citizens. It didn’t pass, and the whole thing was politicized. Even if it did pass, the practicality of providing them citizenship paperwork to protect the refugees against Chinese repatriation would be hard, because these people wouldn’t be vetted (are they criminals in the North? Could they be spies? Are they really Chinese citizens pretending to be from North Korea?)

    In short: The PRC-ROK consular agreement (http://www.dailynk.com/english/read.php?cataId=nk00100&num=12049) is for current ROK citizens, and the North Korean refugees will continue to get shafted.

    阿江 July 7, 2014 | 2:11 pm

    Reply

    How will the new consular agreement between the RoK and PRC affect forced repatriations? As all North Koreans are citizens of the RoK, one would think that, if arrested, they can now simply request to be visited by a South Korean consular official….

    Alex B July 7, 2014 | 9:46 am

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