CURRENT VOLUME

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VOLUME 8
ISSUE 1

August 2019

VOLUME 8
ISSUE 2

January 2020

 
 

Between Torture and Hiding: The North Korean Migration Case in China

By Phillip Kraeter


Different reasons underlie North Koreans decision to cross the border into China irregularly, including state-driven persecution, economic hardship and hunger. While some fall under the refugee definition set out in 1951 Refugee Convention, others classify as refugees sur place given the inhumane treatment and serious harm they would face upon return to North Korea. Although those fleeing the North Korea would be classified as refugees according to several international instruments signed by China, Chinese authorities continue to refuse recognising their refugee status, classifying North Koreans instead as ‘economic migrants’ and repatriating them to North Korea by force. This article examines the challenges faced by North Korean refugees in regard to accessing international protection and the extent to which both North Korea and China fail to fulfil their obligations under international refugee and human rights laws. Despite bilateral agreements with North Korea, it argues that the automatic repatriation of North Koreans by China is an unlawful procedure and that both North Korea and China must conform to international agreements to protect North Korean citizens fleeing the country. Based on an analysis of the legal framework in place, as well as a consideration of the broader geopolitical context at play, this article suggests several recommendations for improving the situation of North Koreans in China.

Introduction


Although the main destination of choice for those fleeing has been the Republic of Korea (South Korea), it is estimated that in total between 100,000 and 300,000 people have arrived in China from North Korea (Margesson, Chanlett-Avery, Bruno 2007: 4) by 2007–a number which is likely to have increased since, although up-to-date figures from reliable sources are difficult to obtain. Yet inconsistencies and disagreements persist over the classification of those who arrived from North Korea in China. Whilst North Korea refers to the migrants as ‘defectors’, the United States and other third parties utilise the term ‘refugee’. China, however, makes use of the term ‘economic migrant’. While they could be classified as refugees and protected against repatriation to North Korea according to several international instruments signed by China, Chinese authorities have refused to recognise their refugee status and repatriating them to North Korea by force.


This repatriation brings with it further problems, as North Korea is known to commit several human rights violations such as torture or dehumanising treatment on migrants after being returned to their country (Lee et al 2001: 227). The political situation in the region complicates the matter further. Whilst China fears the consequences of a collapse of North Korea, it is also reliant upon it as buffer zone between China and South Korea, and more precisely the influence of the United States. Therefore, it is in China’s national interest to find a risk-free solution to this issue, while not provoking allies or being viewed by the international community in a negative light.


This article seeks to answer the following questions: What challenges have North Koreans fleeing North Korea since 1990 faced in accessing international protection? To what extent are North Korea and the China fulfilling their obligations under international refugee and human rights law? The scope of this article is set after 1990, as this marks the time of Sino-South Korean relaxation and further coincides with the natural disasters that took place starting 1995. Further, the case of China was chosen due to the complex interplay between international treaties vis-à-vis national law, and the contradicting interpretations of actions by the government in question.


It analyses the legal framework in place in China as well as North Korea, including relevant international treaties. It also offers reflections on the contemporary situation and broader geopolitical context in an attempt to understand China’s and North Korea’s position vis-à-vis those fleeing into Chinese territory. Finally, the article concludes by exploring possible solutions to improve the matter in question and considers remaining research gaps.


In terms of methodology, it is important to note that neither North Korea nor China grant access to information on the issue. No interviews were therefore conducted directly by the author. Aside from drawing on articles pertaining to the legal and political situation, the majority of sources are based on testimonials of North Koreans, reports, or interviews from NGOs and academics who have gained access to migrants. Sources were selected based on relevance to the topic of North Korean migrants in China, on the root causes of the problem, and on potential solutions and treaties in place, which should protect them.


North Korean ‘economic migrants’ in need of protection


To establish an understanding of the legal framework in place, several definitions need to be laid out. At the core of this lies the decision of the Chinese government to classify North Korean migrants as ‘illegal economic migrants’, rather than ‘refugees’ (Ra 2015: 44). The United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status understands an economic migrant as ‘a person who voluntarily leaves his country (…) exclusively for economic considerations.’ (UNHCR 2011: 15). Yet, a refugee is understood under the 1951 Refugee Convention (Refugee Convention) as any person who is outside their country of nationality and is unable or unwilling to return there or avail himself to the protection of that country, on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (Refugee Convention Article 1A(2) 1951). While there is no universally accepted definition of the term ‘persecution’, it can be inferred from article 33 of the Refugee Convention that a threat to life or freedom of an individual on the account of race, religion, nationality, political opinion or even membership in social groups would constitute persecution (UNHCR 2011: 13). A fear of persecution may be established where the state is responsible for the persecution or where there is an absence of state protection against other actors.


Applying these definitions to the present case, there seem to be two main umbrella categories of people fleeing North Korea into China. The first refers to individuals fleeing North Korea for fear of persecution at the hands of state forces, who would satisfy the definition of a refugee as laid out in the 1951 Refugee Convention and its 1967 Protocol. The second category is comprised of those individuals leaving North Korea for other reasons, such as famine or better economic opportunities, making them economic migrants strictly speaking. The lines between these two umbrella categories are blurred, however. Famine and economic deprivation, for example, are sometimes part and parcel of persecutory measures against families or particular groups of individuals considered hostile to the regime. Due to a system of social classification in North Korea, for example, those who the regime considers to be in a hostile group could face restricted access to jobs or food. In addition, even those who may not be considered as hostile by the state but who leave North Korea nonetheless risk facing inhumane treatment as objectors to the regime upon return. This classifies them as ‘refugee sur place’ (Chan and Schloenhardt 2007: 225), a term used to describe a person who was not a refugee when they left their country, but who becomes a refugee at a later date, due to a change of circumstances in their country of origin or as a result of their own actions (UNHCR 2011).


Thus, it is important to note that even those who have left North Korea due to economic hardships or hunger may nevertheless become eligible for international protection after leaving the North Korea. North Korea officials are known to inflict harsh treatment on individuals who have left the country and are then repatriated by Chinese officials. Such treatment includes torture, imprisonment, or even execution (Chan and Schloenhardt 2007: 226; Lee et al 2001: 227). In fact, articles 117 and 47 of the North Korean Criminal Code make it a punishable offense to leave the country without possession of valid travel certificates and corresponding permission from the authorities (Chan and Schloenhardt 2007: 221). Furthermore, crossing a border illegally is a ‘crime of treachery against the Fatherland by defection’ according to article 62 of the Criminal Code (Kim 2015: 127; Margesson, Chanlett-Avery and Bruno 2007: 9). This shows that North Korea aims to punish those being disloyal, further strengthening the position of refugees sur place.


Understanding existing laws and treaties in North Korea and China


North Korea has signed four international treaties relating to human rights, namely: The International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and political Rights (ICCPR), the Covenant on Elimination of All Forms of Discrimination against Women (CEDAW) and finally the Convention of Rights of the Child (CRC) (Amnesty International 2004, 2). The aforementioned articles of the North Korea Criminal Code stand in direct conflict with at least one international treaty signed by North Korea, the ICCPR. Amnesty International finds that North Korea’s article 117 of the Criminal Code violates article 12(2) of the ICCPR, which states that ‘everyone shall be free to leave any country, including its own’ (Amnesty International 2004, 29). It further notes that officials of the frontier administration, who are found helping someone cross the border and flee, face a sentence of two to seven years in a labour camp, as per article 118 of the North Korean Criminal Code (2004: 29). However, given the lack of available information, there is some debate among scholars regarding the level of punishment inflicted upon those found guilty of illegally crossing the border. While Kim cites a minimum punishment of five years if found guilty of treachery by defecting (2015: 127), Chan and Schloenhardt argue there is a standard sentence of seven years (2007: 221). Some scholars also cite death by execution as the final punishment for severe offenses. Such a ‘severe offense’ could for example be contact with South Korean citizens or religious organisations like Christians in northeast China while fleeing North Korea (Kang 2016: 71). It is seen by North Korea as unlawful political expression which is understood as an ideological crime and therefore warrants persecution in North Korea (Cho 2013: 226).


Scholars such as Chan and Schloenhardt (2007) note that there are numerous factors which further complicate these matters and make it difficult to determine the realisation of the law. One reason cited is North Korea’s unwillingness to permit external human rights monitoring bodies into the country. As a result, much of the information in the literature is based on media reports, government sources, or anecdotal evidence. Due to these challenging conditions, many NGOs have left North Korea, citing the difficulty to obtain information without direct access to North Koreans. There is also general frustration when dealing with the government due to its apparent disregard of several articles of the North Korean Constitution of 1998, including the rights of freedom of speech, press, assembly, demonstration, and association (Chan and Schloenhardt 2007: 217). Although this law grants the above rights in theory, Lee (2001: 227) explains that the situation in North Korea reveals several human rights violations, such as torture. Despite signing these four international human rights treaties, North Korea is not seen as cooperative in fulfilling its obligations of upholding the rights of refugees.


An additional problem is the role China plays and the actions it has taken in this multi-faceted issue. China serves as one of the main temporary destinations for North Korean refugees. Although UNHCR estimates that there are between 30,000 and 50,000 North Koreans living as refugees in China since 1990 (Margesson, Chanlett-Avery, Bruno 2007: 4), some estimate there are as many as 300,000 (Ibid: 4). A reason for this large discrepancy is that UNHCR has no direct access to North Korean migrants, as many remain in ‘underground’ movements attempting to stay hidden. China’s role in this is interesting due to the aforementioned reluctance to view North Korean migrants as refugees. China, unlike North Korea, is a party to the 1951 Refugee Convention, signed by China in 1982 (Ra 2015: 43). In the 1970s and 1980s, China also ratified several other international human rights instruments and treaties (Song 2014: 5). The Chinese government, however, denies UNHCR direct access to refugees in China, making it challenging to uphold the Refugee Convention (Kim 2015: 136). China has responded by proclaiming that the situation is an internal matter and therefore refuses to provide UNHCR with further access (Cho 2013: 208; Ra 2015: 44).


Song (2014: 3-4) identifies China’s legal framework as the reason it is dealing with the situation in this way. She warns that the biggest challenge in dealing with cross-border human displacement into China is the absence of a refugee definition in Chinese domestic law. In particular, China’s Constitution is silent on the legal status of international treaties and their respective hierarchy in the domestic legal system. At the same time, China has not codified the definition of a refugee into domestic law, nor has it been directly applied by Chinese courts. Thus, although scholars such as Ra, Kim, Chan and Schloenhardt condemn China for violating its international obligations by disregarding treaties, Song argues that this is due to the disregard on the side of the Chinese government about the legal status of international treaties, including the definition and rights of refugees established in the Refugee Convention (Ra 2015: 45; Kim 2015: 136; Chan and Schloenhardt 2007: 224; Song 2014: 6).


With this in mind, the question remains whether the domestic legal framework or a signed international treaty holds greater importance. Song attempts to explain this difference using the example of article 46 of China’s Law on Exit and Entry Administration of 1986, which states that ‘foreigners seeking asylum for political reasons [who are] subject to the approval of governing authority in China, are allowed to stay and live in China’. In 2013, this was updated to provide that applicants for refugee status may stay temporarily in China during the application process and that those granted refugee status may stay in China. Yet, this law did not cover the issue of who qualifies for this refugee status, nor the procedures of this status determination (Song 2014: 7). Song therefore argues that the main issue underlying China’s approach to North Korean migrants is that China is relatively new to refugee protection and has little to no knowledge about the international refugee regime. Particularly as prior to the mid 1990s, China had limited experience with asylum seekers and its legal framework makes little difference between refugees, tourists, and immigrants (Song 2014: 8).


Reasons causing North Koreans to cross into China


There are several different conditions which catalysed the movements of North Koreans into China. This section outlines how economic downturn and famine, in addition to state-driven persecution, forced the citizens of North Korea to consider other options and gave rise to the present case of North Koreans fleeing to China.


In 1995, North Korea was hit by excessive floods, destroying crops en masse, leading to a national famine that lasted until 1998 (Cho 2013: 196). These heavy floods which began in North Korea damaged agricultural activities, leading to a substantial food shortage that has not been adequately solved (Chan and Schloenhardt 2007: 220). The situation further exacerbated by droughts during the 2000s, fully collapsing the agricultural industry. To this day, this shortage has not been fully handled and has in fact worsened by an ongoing drought (Choe 2019). It is estimated that 2 to 3.5 million people starved to death from 1995 until 1998, yet the North Korean government claims that the death toll was around 220,000 (Cho 2013: 197). Although natural disasters are not something in control of the government entirely, the response certainly is. In the case of North Korea, the country has yet to fully recover from this natural disaster of this scale.


However, for North Koreans, famine and natural disasters are not the only issue at stake. North Koreans live within an ongoing system of social classification, despite article 65 of the constitution calling for the right to equality (Lee et al 2001: 218). There are three main groupings in place: ‘core’ class, making up roughly 30% of the population; ‘wavering’ class, equal to roughly 50% of the population; and ‘hostile’ class, with the remaining 20% of the population (Cho 2013: 187).[1] As access to information is scarce in the North Korean context, these numbers could be slightly outdated, but still serve as the most recent credible classification. The core class forms the elite, with preferred access to food, medicine, education, and employment, while the wavering class consists mostly of the working class, with professions such as teacher, technician, soldier, and farmer (Chan and Schloenhardt 2007: 218). Lastly, the hostile class represents those disloyal to North Korea (Cho 2013: 187). This is not to say that 20% of the population has been directly involved in acts of treachery. Rather, it is based on North Korea’s system of ‘collective responsibility’. Due to the strong ongoing family ties, collective responsibility prescribes that relatives of those breaching the law are equally punishable (Chan and Schloenhardt 2007: 218; Chang, Haggard and Noland 2008: 9). This punishment can even extend to multiple generations and is intended to cleanse the population of any and all opponents. Therefore, mere opinions of a relative can blacklist a person from receiving adequate quality of education or job offers over generations, even if this relative is long dead.


This social classification system is propped up by North Korea’s prison system, which is further broken down into four different types of hard labour facilities, resembling modern-day gulags (Cho 2013: 189). Interrogation techniques such as water torture are applied to determine the degree of imprisonment. North Korean officials reject the existence of such institutes, however, despite estimates that between 150,000 to 200,000 prisoners are being detained there (Ibid: 190-192). In order to strengthen the prison and social class systems, North Korea also adopted stricter border control in the early 2000s. This included instructions for border guards to shoot attempted border crossers on sight (Human Rights Watch 2013; Kim 2015: 127). However, the tightening of border control does not just pertain to North Korea. China has also pledged stricter controls and supports this by imposing repatriations.


In addition, for decades, North Korea has also been an outlier within the international community, despite continued efforts to establish political ties to several countries. Under Kim Il-Sung, North Korea’s supreme leader until 1994, an ideology termed ‘Juche’ was formed. This can be understood as an ideology of self-reliance and a person being master of its own destiny and that North Korea should be the centre of interest and be the driver of its own progress. This ideology is one of the reasons of the present political and economic isolation of North Korea (Amnesty International 2004: 2). The early 1990s also saw a decline in trade with China over the normalisation of Sino-South Korean relations. Whilst the North Korean government may have been able to cope with these two conditions on their own, the fall of the Soviet Union in 1991 made this impossible, as it meant losing 40% of its imports (Cho 2013: 196). The social classification, applications of torture techniques paired with isolation to the international community due to policies such as ‘Juche’ play a cumulative role in this debate. Although some factors certainly have a larger impact on this situation, they all contribute a part in the development of North Koreans crossing into China.


China’s neglect to offer protection to North Koreans


The massive arrival of North Koreans in China sparked the question of who can be classified as a refugee in China. As previously mentioned, due to a lack of a refugee definition in Chinese domestic law, there have been no effective mechanisms to ensure implementation of the relevant treaties China has signed (Song 2014: 14). According to UNHCR Guidelines, an individualised assessment to determine refugee status should take place (UNHCR 2011: 165). Instead, China simply denies the refugee status of North Korean migrants by claiming they have illegally entered China for economic reasons. Further, sheltering North Korean refugees can result in imprisonment in China, even for non-Chinese citizens (Ra 2015: 45).


At the core of this reaction, according to Chinese officials, lies the 1961 Sino-Korean treaty, which obliges China to return all North Korean nationals who entered China without a valid travel ID (Chan and Schloenhardt 2007: 224). The 1998 China-North Korea Bilateral Agreement on Mutual Cooperation for the Maintenance of State Safety and Social Order additionally creates an obligation on China to repatriate North Korean defectors (Ra 2015: 44). Despite scholars finding these agreements in violation of international treaties signed by China, such as the Refugee Convention or the Universal Declaration of Human Rights, China disregards these claims by classifying the border crossers as economic migrants, rather than refugees in need of protection (Ra 2015: 44; Chan and Schloenhardt 2007: 224). In their eyes, this means they would not be in breach of the principle of non-refoulement enshrined in article 33(1) of the Refugee Convention, which prohibits the return of a refugee to where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (Chan and Schloenhardt 2007: 234-235).


It is worth noting, however, that China in fact would be under an obligation not to repatriate North Koreans migrants arriving in China, regardless of whether they qualify for refugee status, given widespread evidence that North Korea makes use of torture techniques to interrogate defectors, and that those repatriated face harsh conditions including execution. This is because unlike North Korea, China is a signatory to the Convention Against Torture (CAT), which it ratified in 1988. Article 3 of the CAT, prohibits parties from returning, extraditing, or refouling any person to a state ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture’. China’s extradition law of 2000 further prohibits extradition of persons who have or will probably be subjected to torture or other cruel, inhuman, or humiliating treatment or punishment (Cho 2013: 212). Nonetheless, China knowingly conducts a procedure of automatic repatriation, citing bilateral treaties and political relationships with North Korea.


The Chinese viewpoint is supported by the ‘last in time’ law, which states that the treaty which was signed last should supersede others and can be seen as shielding China and the North Korean action in this instance (Cho 2013: 219-220). Consequently, the law is often regarded as undermining the implementation of the Refugee Convention and other instruments, as governments could simply re-negotiate treaty commitments by enacting new legislation. The ‘last in time’ law requires that all existing parties need to be a part of both treaties in question for one to override the other. While Article 27 of the Vienna Convention on the law of treaties and institutions such as UNHCR view international agreements to outrank bilateral ones, the Chinese government seems to disagree (UN 1969: 339; Margesson, Chanlett-Avery, Bruno 2007: 3). As a result, North Koreans are still automatically repatriated by Chinese authorities, despite being bound by the Refugee Convention and other relevant instruments.


To assist in resolving this situation, UNHCR proposed a special humanitarian status for North Korean refugees, allowing them to obtain temporary documentation for the protection from forced return (Ra 2015: 58). This led to a 17% increase in the granting of work visas to North Koreans in 2013, totalling 93,000 (Ibid: 59). To avoid criticism, China has granted North Korean refugees who successfully entered a diplomatic compound the right to leave to a third country. This is done to avoid repatriation and therefore creates the ability of a smooth transition into the final destination for the refugees in question (Chan and Schloenhardt 2007, 237).[2] Despite this, China simultaneously tightened the security around these compounds and demanded embassies to hand over North Koreans to Chinese authorities. This seems to violate the principle of non-refoulement, as diplomatic compounds have a responsibility not to return them (Ibid: 238). A possible way to address the concerns regarding the classification of refugees and who to protect, would be to fall back on the implementation of an individualised assessment system, as prescribed by UNHCR. Yet, to understand fully why China has been avoiding such a system to date in the case of North Koreans fleeing into China, its underlying motives should be considered.


The geopolitical context and China’s underlying motivations


North Korea acts as a geographical buffer zone between China and U.S. troops located in South Korea. This suggests that in any action China takes, it seeks to neither create a pull factor to encourage a greater influx of North Korean refugees, nor to provoke an ally or destabilise the North Korea (Margesson, Chanlett-Avery, Bruno 2007: 12). Therefore, in order for China to reconsider its strategy of forced repatriation, it must be reassured first that actions such as granting UNHCR access will not lead to an exodus from North Korea into China, or a collapse of the North Korean regime entirely. As this is a big threat China faces, it must be addressed in order to reach an outcome for this case (Chan and Schloenhardt 2007: 239-240). A suggestion towards such reassurance would be to allow China to draft such agreements with UNHCR, settling for a compromise until another solution is found.


The survival of North Korea is seen as a core factor for China because a fall of the regime could potentially be a catalyst for a new Korean war, or cause an even larger, unwanted influx of North Korean refugees into China (Cho 2013: 202). Although this means that the Chinese-North Korean alliance is relatively one sided, these sacrifices go hand in hand with China’s position in the East Asian region to become a superpower. A North Korean dismantling would be negative for such endeavours and is therefore not wanted by the Chinese government. This, although not justifying the breach of international law, does go far in explaining the Chinese stance and sheds lights on the motivation behind procedures such as forced repatriation of North Korean refugees.


Conclusion


The case of North Korean migration in China explored in the present article presents layers of complexity relating to legal frameworks on a national and international level. Further complications are added by the actions taken based on international agreements signed. Both China and North Korea are to blame for this. The study indicates that a true solution is not in sight, and that the access to protection for North Koreans fleeing into China is not an issue that will be resolved on its own.


However, if China is assured that complying with international treaties and responsibilities does not threaten the existence of North Korea, a solution could possibly be negotiated on more realistic terms. Currently, an issue that prevents reaching a solution with positive outcome for North Koreans is the Chinese blanket statement that all North Korean refugees are in fact economic migrants. Not only does this seem to violate China’s obligations under international law, but it also fails to take into account the need for individualised assessments to be conducted when evaluating the asylum claims of North Koreans. Such assessments would need to be conducted in a way where they conform to international instruments, yet would not damage existing bilateral agreements, making them a realistic and worthwhile consideration. To then adequately make the separation between who is an economic migrant and a refugee, a case-by-case assessment needs to be implemented. This would allow China to comply with the 1951 Refugee Convention and other obligations under the CAT.


Despite analysing the situation facing North Korean migrants and refugees from a multi-layered perspective, future research on this topic could aim to explore the role of the international community in greater detail, including its roles and responsibilities in terms of accessing information. This is especially important as NGOs themselves continue to find themselves with limited access to information in and about North Korea. Moreover, as it was not possible to conduct interviews for this study, this article does not capture how North Korean refugees feel about the procedures put in place. Further studies on the topic should therefore aim to integrate their voices into the analysis.


The economic situation in North Korea is not likely to improve soon, and equally starvation may continue to drive citizens abroad in search for food. It is important to keep in mind that those fleeing North Korea do not do so for a single motivation. Apart from those that flee for persecution reasons laid out in the 1951 Convention, it is important to acknowledge the protection needs for those whose flee economic hardships and famine and may become refugees sur place due to the fear of political persecution or mistreatment upon return. In order to solve the root of the issue, more must be done by the international community to nudge North Korea towards addressing these issues. For this to be realised, however, the use of execution, torture and violations of the rights of freedom of movement, opinion, speech and assembly must be prohibited in North Korea.


Phillip Kraeter is a recent Leiden University Bachelor’s graduate of International Studies with a focus on East Asia. He has worked as a small-scale business developer, consultant, and researcher for several international SMEs, while simultaneously partaking in a tech-based start-up. The study of migration is a long-term interest, having grown up in Berlin, then Dubai and further stations in Shanghai and The Hague. Further interests are modern technological advancements such as the crypto-space and general digitalisation as well as the East Asian region, particularly China.


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[1] Core class = haek-sim kyechung, wavering class = tong-yo kyechung and hostile class = jok-tae kyechung. The latter has no right to education, employment or medical services of any kind despite article 65 (Cho 2013, 188).


[2] The final destination for a vast majority of North Koreans is South Korea. Partially, this is because of article 3 of the South Korean Constitution, granting any North Korean national South Korean citizenship.

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