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       In the late 1970s and early 1980s, China hosted nearly 300,000 Indo-Chinese refugees, whom the government provided with shelter and basic living essentials, later relocation to the southern provinces and assistance integrating into local life (Robinson, 1998). However, China has become immensely conservative when contemplating the intake of North Korean refugees.  As a member of the 1951 Refugee Convention, China must follow certain provisions. The Chinese government argues that it has signed on the China-North Korea border control agreement, and North Koreans are “economic immigrants” rather than refugees (Chi, 1997). The ambiguity about the definition of “refugee” may pose potential trouble leading to future disputes. However, for China itself, as the world’s second-largest economy; the country should take a more active role in the global migration crisis rather than escaping from it.  

 

Basic Information on Migration to China

            Unlike many other countries, China does not possess a strong desire for foreign labor forces due to its large population (~1.4 billion). What propels China to participate in this global crisis is mainly due to its reaction to criticism from the global society and its concern for maintaining a positive world image.

            While it is true that China received an impressive number of Indo-Chinese refugees from 1975-1985, the Chinese government’s generosity was based on family ties rather than merely fulfilling its humanitarian responsibility. According to Holliday’s research (2009), most of these Vietnamese refugees were, in fact, Chinese civilians who ran across the border to protect themselves from attack during World War II. As a traditional Chinese saying goes, “One in trouble, all will help.” It is likely that, in the late 1970s, the Chinese government agreed to host a large number of Vietnamese refugees because China needed cheap labor forces to develop its manufacturing industry.

 

 

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Total People of Concern in China (1979-2017)

Figure 1 UNHCR Data Online, (Accessed November 29, 2018)

 

            In the late 1990s, the total refugee population increased gradually (see figure 1). The Chinese Open-Door policy stimulated the growth of the economy, which attracted many foreigners, including refugees, to migrate to China (Biao, 2007). However, when it came to the 21st century, due, primarily, to a rapid increase in population, China began to restrict the entry policy (Ramia, 2008). Unable to sustain its own population, the government opted to pursue a one-child policy since late 20th century. It proved very difficult for China to accept additional people.

            From 2015 to 2017 (Figure 1), the total refugee population in China increased dramatically. Figure 2 demonstrates that this increase was primarily caused by an influx of refugees from Vietnam. Although it is difficult to find any further analysis of this sharp increase, it cannot be interpreted as a positive trend of China’s response to this global crisis, as there are no official sources trying to explain or report this increase. One theory for this increase is that it was due to a statistical error in the Chinese government’s 10 year demographic survey. However, a more viable explanation for the sudden spike in growth is that the total refugee population increased normally and gradually rather than unusually and sharply.

 

 

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​Figure 2 UNHCR Data Online, (Accessed November 29, 2018)​​

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China’s Response to North Korean Refugees

            Although China has long since been criticized by the international community on its unwelcome attitude towards refugees, it was not until the early 21st century that audiences began to focus on China’s response to North Korean refugees. In 2001, seven North Koreans came to the UNHCR Beijing Office and requested asylum.  The Chinese government, however, decided to expel the North Korean refugees regardless of UNHCR’s decision to admit their refugee status. Immediately afterward, the Chinese government started to search for North Koreans near the border area. The Chinese government imposed a policy that required the immediate deportation of all North Korean refugees back to North Korea.  According to the U.S. Committee for Refugees and Immigrants, 6,000 people were arrested within two months (Chang, 2001).

            China’s argument that they were complying with the 1951 Refugee Convention was that those North Koreans who crossed the border and entered China were “illegal economic migrants”, who were not under the protection of international refugee law. To better understand whether China violated its obligation to comply with the international refugee law, it is necessary to understand the term “refugee,” first based on the 1951 Convention.

            First, an asylum seeker is defined as being outside his or her country. According to Goodwin-Gill (1996), “the fact of having fled, having crossed an international frontier, is an intrinsic part of the quality of refugee, understood in its ordinary sense (p.59).” If inside its country of origin, it is the home country’s responsibility to protect its people’s rights. Second, the asylum seeker must be unable to request protection from his or her country of origin, because international protection should be applicable when domestic protection is not available. UNHCR asserted that the definition refers to state persecution because it is possible that a person is under the intense fear of reprimand from his or her country of origin. Third, the status of refugee includes an element of a well-founded fear of persecution. According to Articles 31 to 33 of the 1951 Refugee Convention, the term “persecution” can be interpreted as threats to an individual’s life or freedom (Plender, 1988). While people usually focus on physical abuse, other serious abuses such as excessive psychological pressure should also be included in “persecution”. Therefore, due to the subjective nature of each case, it is essential to decide the status of refugee cases individually.

            According to the UNHCR, economic migrants are those who leave their home country voluntarily for personal reasons, especially those pertaining to economic considerations. The direct reason most North Koreans leave their home country is due to food shortage, which is mainly caused by natural disasters, inefficient economic policies, technological restraints, etc. (Haggard & Marcus, 2007). To claim their refugee status, individuals need to demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (1951).” Although the definition leaves a large room for interpretation on the scope of persecution, extreme economic conditions do not conform with any category of the five grounds for persecution. The purpose of international protection for refugees is to reduce human rights violations (Guy, 1996). Although what often pushes North Koreans to escape from their homeland is starvation, it is worthwhile to analyze their living conditions inside their country of origin as well as the consequences of repatriation.

            Except for natural disasters including droughts and floods, the North Korean government is also responsible for domestic economic difficulties (Kim, 1994). The Kim regime used to isolate North Korea from other countries. It was not until recently that Kim Jong Un began to negotiate with South Korea and the United States. Little interaction with other countries restrained North Korea from recovering from natural disasters because of the difficulty involved for international organizations or any foreign country to aid the nation. Moreover, the government’s mismanagement and internal corruption made widespread starvation worse.

            Moreover, in North Korea, people are not free to express their political opinions. If someone speaks out against the current regime, he or she will be assigned to menial jobs where basic needs cannot be guaranteed. Under the Kim regime, if an individual openly opposes political opinions, he or she can be charged with the death penalty. Among the significant number of North Koreans trying to cross the border, some feared political persecution. Even for those without the fear of political persecution, they would face more severe persecution if they fled to other countries illegally and were later caught by either the Chinese or the Korean government (Lee, 2006). It is tricky because the following consequences meet the five grounds of “persecution”, so the Chinese government’s repatriation will put these North Koreans into severe dangers.

            In North Korea, a large family is defined as a social group. If an individual openly opposes the Kim regime, the whole family will be punished. Even future generations are very likely to be outcast due to their family’s reputation. People with an incriminating reputation will not only be discriminated against by the whole society, but also may have less access to food and other necessities. For those who have tried to cross the border to China and were later repatriated to North Korea, their basic human rights were in jeopardy. In other words, it is reasonable to question the political and economic status of those North Koreans who flee to China. While the Chinese government is obligated to protect them, once the refugees have successfully crossed the border, they are under extreme threats of persecution from their country of origin.

            Another central principle of the 1951 Refugee Convention is that “no contracting state shall expel or return (‘refouler’) a refugee in any manner, whatsoever, to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The principle is known as non-refoulement, which protects vulnerable asylum seekers from being forced to return their country of origin. Many international and regional agreements relating to refugee protection or human rights have stressed the principle, such as the 1984 UN Convention against Torture (Article 3). Article 33 prohibits expelling an individual to where his or her life or freedom may be endangered, including the place of origin. While the status of “refugee” is pending, asylum seekers, if under the danger of persecution once returning, are also under the protection of the Article. UNHCR’s General Conclusion on Non-Refoulement Executive Committee Conclusions also states that the principle of non-refoulement should be applied regardless of whether the person concerned has been formally recognized as a refugee (Chang, 2001). Based on the principle of non-refoulement, China has violated the Refugee Convention as its Ministry of Public Security has the authority to repatriate North Koreans. China has also constructed a 20-kilometer fence to prevent North Korean refugees from crossing the border. As a member of the 1951 Refugee Convention, China has the obligation of non-refoulement, in Article 33, but it is doubtful whether the principle has legal authority as customary law. Because states do not always implement the principle, some argue that it is not a rule of customary law (Lomba, 2001). However, as noted by the International Court of Justice (1986), “if a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the state’s conduct is, in fact, justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule” (p. 186). States have debated the implementation of the principle rather than the recognition, even for those who have repatriated people seeking international protection (e.g. China: their legal basis of compelling these people to return is weak). Imagine that if the principle fails to bind states, every time an asylum seeker crosses the border and waits for the registration of refugee status, the hosting country can always expel the individual to return. In other words, the principle of non-refoulement should be confirmed as an imperative norm of international law, accepted by member states.

            Another issue is whether the bilateral agreement with North Korea prevails over the Refugee Convention. The Sino-North Korea Treaty is more recent. When considering the principle that new laws prevail over old laws, it seems that the Refugee Convention is not valid. However, this principle is not absolute because of the peremptory nature of the international norm. Therefore, China should follow its obligation to the Refugee Convention over its bilateral treaty with North Korea. Moreover, based on Article 102 of the UN Charter, the obligation of the UN Charter should prevail over other incompatible treaties. As a permanent member of the UN Security Council, it is China’s responsibility to help the UN to maintain international peace and security. Therefore, China should adhere to its obligations under the UN Charter above those to other regional treaties, even if this decision sparks the detriment of traditional bilateral relations with North Korea (Kim et al., 1997).

The status of those North Koreans who move to China is still open to discussion. Considering their dangerous living conditions after being returned to their country of origin and the nature of the non-refoulement principle, China should not repatriate North Koreans under the high possibility of persecution.

 

Implications for China on Refugee Issues

            When China decided to repatriate North Koreans to their home country, there exists no doubt that this policy violated international refugee law. Despite criticism from western countries and international organizations, there is no known solution to bring China into compliance. For the UNHCR, it “has not prevented the refoulement of even one North Korean refugee” (Kim, 1997, p. 23). Moreover, on the UNHCR official website, there is a lack of North Korean asylum seekers’-related data in China. Rather, it is taboo to discuss the North Korean refugee issue if UNHCR wants to keep its office and cooperate with the Chinese government. But for China, if it wants more political power in international affairs, it should garner the courage to take the refugee crisis more seriously.

            The year 2018 marks a milestone for North Korea. The Kim-Moon talk and Kim’s meeting with President Trump in Singapore have again attracted the world’s focus to North Korea. While tensions are easing between North Korea and South Korea and the United States may help improve the North Korean refugee crisis, it is critical for China to reconsider its “lips and teeth” relationship with North Korea.

            China has always worried about the collapse of North Korea’s regime. Since its national security is highly related to the stability of the peninsula, it is sensible for Beijing to work with the international community to complete denuclearization of the Korean peninsula. Controlling North Korea’s internal stability will make a difference in the refugee crisis. While it may not be realistic for China to accept a large number of refugees immediately, the first step is to stop violating the principle of non-refoulement and admit asylum seekers’ right for the status of refugee.

            For a long time, China has exerted great effort into the realm of foreign aid and peacekeeping forces, which may support the reason that the UNHCR fails to reprimand China. China has contributed much to international assistance, yet there are still many things to do. First and foremost, the government should stand out and clarify its position on the refugee issue. Given the 1.4 billion population, it is unrealistic for China to change its refugee policy in a short time. However, the government should construct a positive and responsible image to its people. The Chinese government should admit its obligation to the 1951 Refugee Convention. Otherwise, not only refugees, but also the UNHCR, will continue to be regarded as enemies of the Chinese government. In the long run, it is possible that China will loosen its refugee policy because it is now facing an aging population. Immigration could help stabilize the economy under the threat of a shortage of young laborers and an increasing number of retired workers. However, it is first important to consider how to impose and regulate an immigration procedure.  Next, it is essential for China to train and send professional officers to assist with refugee registration, or at least assist the UNHCR with refugee screening.  As opposed to the United States, China is relying on police officers from the Ministry of Public Security to expel so-called “illegal immigrants”. It is hard to guarantee that the procedures of the Ministry of Public Security’s officers are in accordance with the Refugee Convention. Since UNHCR has two country offices in both Beijing and Hong Kong, if China is unwilling to concentrate efforts on training professionals, the UNHCR can also rely more on the country offices. Lastly, China should retain its generous policies on humanitarian aid and peacekeeping forces. Despite the international community’s criticism of China’s attitude on the refugee issue, especially its irresponsibility pertaining to North Korean refugees, China has actively participated in multilateral peace mediation, such as the International Syria Support Group. The number of peacekeeping forces from China ranks second, only below the United States. China has also pledged a large amount of money in foreign aid. For example, in 2016, Chinese president Xi Jinping donated $135 million after his tour in the Middle East.

            The concern of any government should not only pertain to the people of its state, but rather to the whole world. As China seeks a more influential role in the international community, it is vital to collaborate with the rest of the world. China should respect international human rights law and carry out a new approach to protect North Korean refugees’ human rights.

 

 

                                                                                         REFERENCES: 

[1] Biao, X. (2007). The Making of Mobile Subjects: How Migration and Institutional Reform Intersect in       

               Northeast China. Development: Migration and Development Hound mills, 50 (4), 70.

[2] Borders Citizenship & Immigration Act 2009 - Jd Supra. (n.d.). Retrieved from   

               https://www.jdsupra.com/legalnews/borders-citizenship-immigration-act-20-20971/.

[3] Chang, B. The Legal Status and Scope of Application of the Nonrefoulement Principle in International Law.

              Seoul International Law Research, 1, 2001.

[4] Chi, B. 1997. Legal Settlement of North Korean Refugee in China”, Journal of Humanitarian Law.

[5] Chinese people unwilling to take in middle eastern refugees. (2017, Jul 08). EFE News Service.

[6] Constitution of the People's Republic of China. (1982). Retrieved from

              http://web.archive.org/web/20041220182131/www.constitution.org/cons/china.tt.

[7] Convention Relating to the Status of Refugees. (1954). Retrieved from

              https://www.ohchr.org/en/professionalinterest/pages/statusofrefugees.aspx.

[8] Goodwin-Gill, G. S. (1996). The Refugee in International Law. Clarendon Press, 2, 40.

[9] Holliday, I. (2009). Beijing and the Myanmar Problem. Pacific Review, 22, 479-500.

[10] Haggard, S. & Kaufman, R., R. (1997) The Political Economy of Democratic Transitions. Comparative

               Politics, 29(3), 263-283.

[11] Ian, A. (2018). Beijing holds the aces in Myanmar's Rohingya crisis. Khaleej Times

               (Dubai, United Arab Emirates).

[12] Ian, B. (1990). Principles of Public International Law. Clarendon Press, 4.

[13] Ibrahim, A. (2018). Beijing holds the aces in Myanmar's Rohingya crisis. Khaleej Times.

[14] Law of the People's Republic of China on Control of the Entry and Exit of Aliens (China). 1986. Retrieved

                from http://www.unhcr.org/refworld/docid/3ae6b4dclc.html.

[15] Lee, K. (2006). The Protection of North Korean Refugee and Antitorture Convention. The Korean

                Journal of International Law, 1.

[16] Liu, W. (2009). Explaining China in the United Nations.

[17] Lomba, S. D. (2001). Law reform proposals for the protection of the right to seek refugee status in the

                European community. 

[18] Kim, C. (1994). Study on the Refugee Status and Treatment of North Korean Refugee. Human Rights and

                Justice Journal, 214.

[19] Kim, M., et al. (1997). Study on the legal status of North Korean refugee in China in international law.   

                Korean Journal of international law, 2, 31-33.

[20] Masuyama, K. (2010). National interests vs. human rights of refugees: History and current issues of

                refugees Available from ProQuest Dissertations & Theses Full Text: The Humanities and Social

                Sciences Collection.

[21] Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order. 1986.

                Retrieved from http://www.bekkoame.ne.jp/ro/renk/Protocol.htm.

[22] Pan, G. (1991). Shanghai Jewish Refugees During the Second World War. Shanghai Academy of Social

                Science, 112.

[23] Plender, R. (1988). International Migration Law. Martinus Nijhoff Publishers, 2, 417.

[24] Ramia, G., Davies, G., & Nyland, C. (2008). The Compliance Challenge: Implications for Social Security

                 in the People's Republic of China. International Social Security Review, 61 (1), 7.

[25] Robinson, W. C. (1998). Terms of Refugee: The Indochinese Exodus and the International Response. Saint

                 Martin's Press.

[26] Rohingya refugees in Bangladesh: Challenges and way forward. (2018). The New Nation.

[27] Seng, E. L. (2010). Regulating refugees: The relationship between regime type and political asylum in

                 China and Malaysia

[28] Study Guide: The Rights Of Refugees. Hrlibrary.umn.edu. (n.d.). Retrieved from

                  http://hrlibrary.umn.edu/edumat/studyguides/refugees.htm

[29] Whiejin, L. (2016). The Status of North Korean refugee and their protection in international law. The

                  Journal of East Asian Affairs, 30(2), 43-82.