An Examination of China's Treatment of North Korean Asylum Seekers

Abstract

IntroductionChina is in violation of a number of its obligations as a signatory to the United Nations Convention relating to the Status of Refugees.1 The Convention guarantees refugees a number of important rights, including access to courts, freedom of movement, and the right to work.2 On September 24, 1982, China became a signatory to the Convention, binding itself under international law to honor the agreement's provisions. 3 Yet today, more than twenty-five years later, China remains in violation of its obligations under the Convention, especially with regard to thousands of North Korean asylum seekers streaming across its border annually.North Korea remains one of the most repressive, isolated, and impoverished nations on earth. Freedom of press, movement, religion, and assembly are nonexistent, while torture, harsh imprisonment, and execution are routine.4 Increasingly, North Koreans risk death to illegally cross into China for a chance to flee persecution and enjoy a better life. However, the danger does not end once they have successfully crossed. Chinese officials routinely refouler-that is, return-North Koreans to their homeland where they face severe repercussions for what their government views as an act of treason.In returning refugees to North Korea, China argues that North Korean asylum seekers are not refugees under the Convention's definition and that therefore they do not qualify for its protection. This argument is without merit, and China must be held accountable to its treaty obligations under international law.The "Refugee" Question: Classifying North Korean Asylum SeekersChina considers the North Korean asylum seekers to be economic migrants, not refugees, and thus maintains that they do not qualify for protection under the Convention. This argument is baseless. First, North Korea's extreme economic hardship disproportionately burdens certain segments of the North Korean population and is therefore tantamount to persecution, and moreover, it is sufficiently discriminatory to meet the Convention's definition of the term "refugee." Second, the Convention's object and purpose suggest a broader interpretation of "refugee" which indicates China should deal humanely with the North Koreans when determining a course of action. Third, even if North Koreans did not qualify for the Convention's protection prior to crossing into China, they most likely do after the fact as refugees sur place because they have a well- founded fear of persecution if they ever return to North Korea. Lastly, China's unwillingness to make a good faith determination of status should require that any request by a North Korean for refugee status should be accepted as true until proven otherwise.Dismissing China's "Economic Migrant" ArgumentChina maintains that the Convention does not apply because the North Koreans illegally crossing its border are economic migrants, not refugees.5 The United Nations High Commissioner for Refugees (UNHCR) defines economic migrants as those who voluntarily leave their home country for personal reasons such as family or a desire for adventure.6 Specifically, anyone "moved exclusively by economic considerations ... is an economic migrant and not a refugee."7Economic difficulties, technological restraints, energy shortages, and natural disasters have led to massive food shortages in North Korea.8 As a result, it is not at all speculative to say that at least a significant number of North Koreans fleeing to China are indeed motivated by economic considerations. According to the Convention, however, for them to claim refugee status they must also show a "well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." A refugee must be "outside the country of his nationality and ... unable or, owing to such fear, ... unwilling to avail himself of the protection of that country. …