Denying the Refugee: a Comparative Analysis of China and the EU’s Use of the Term “Economic Migrant”

By Bryan Clark, HRNK Research Intern
Edited by Raymond Ha, HRNK Director of Operations and Research
 
June 14, 2022

From the United States denying entry to Salvadorans and Guatemalans fleeing their countries throughout the 1980s, to Australia refusing Vietnamese “boat people” in the early 1980s, classifying refugees as “economic migrants” is not a new phenomenon.[1] However, it is one that has become increasingly common in the 21st century. Many argue that by claiming asylum, economic migrants seek to bypass immigration laws in search of a more stable and prosperous economic environment. However, the term “economic migrant” has been used in many instances to deny protection to refugees fleeing horrendous circumstances. Moreover, it has been used to justify returning refugees to countries where their safety is threatened. Two poignant examples of this are China and the European Union’s (EU) forcible return of refugees under the guise of them being “economic migrants.”

The Convention Relating to the Status of Refugees (hereafter referenced as the 1951 Refugee Convention) and its 1967 Protocol are the two most fundamental treaties in international human rights law for the protection of asylum seekers and refugees. These treaties set out the definition for what a refugee is, their rights, and states’ obligations to them. One of the key elements of the 1951 Refugee Convention is the principle of non-refoulement, which states that refugees cannot be returned to a country where their life or freedom would be threatened based on race, religion, nationality, social group, or political opinion.[2] Under these instruments, signatory states are required to conduct Refugee Status Determination (RSD) procedures to ascertain if an asylum applicant is capable of receiving refugee status under international, regional, or national laws.[3]
 
What adds further complexity is the vague and limited scope of the 1951 Refugee Convention and its 1967 Protocol. As stated by Goedde, a strict reading of the 1951 Refugee Convention hindering the acceptance of North Koreans who flee their country as refugees is consistent with what is happening to refugees in other parts of the world, who are not well received by other states.[4] While the principle of non-refoulement is explicitly stipulated, the definition of “refugee” in both documents is too narrow. This allows states to disregard the danger that many asylum seekers find themselves in should they return to their own country. Unfortunately, states do not have many incentives to expand this definition, as the perceived burden of distinguishing between refugees and economic migrants has led many states to increase their standards of proof in determining refugee status.[5]

In China

For decades, North Korean refugees have fled into China to escape the grim reality of life under the Kim dynasty. The specific reasons for leaving are varied, but some of the most common are food insecurity, political persecution, and lack of religious freedom. Varied estimates place the number of North Korean refugees living in China between 60,000–100,000, the majority of whom reside in the northeastern Chinese provinces along the border with North Korea.[6] Yet, despite having finally escaped the brutal regime, North Korean refugees in China live under the constant threat of being sent back if discovered. The Chinese government denies North Korean refugees the right to asylum by classifying them as economic migrants. It claims that many North Korean refugees enter China to make money to feed themselves or their families. This has been the long-standing position of the Chinese government.

Beijing has several agreements with the North Korean government regarding border issues, including one on the repatriation of those who cross irregularly into China. The most notable of these agreements are the “Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order and the Border Areas” signed in 1986 and a secret repatriation agreement signed in the 1960s.[7] These agreements require China to return any North Korean “migrants” who have illegally crossed into the country. From the Chinese government’s perspective, it considers itself obligated to comply with these agreements, despite having ratified the 1951 Refugee Convention and its 1967 Protocol.[8] Moreover, in 2002, China’s ambassador to South Korea stated that North Koreans illegally crossing into China could not be seen as refugees. Thus, China would protect its borders and treat those who have crossed “according to humanitarian political principles.”[9] However, the act of returning individuals China claims to be “economic migrants” to North Korea is a violation of the principle of non-refoulement, as enshrined in Article 33 of the 1951 Refugee Convention. It has been well-documented by testimonies from North Korean refugees that those forcibly returned to North Korea are placed in prison camps. In these prisons, torture, rape, forced abortions, and death due to mistreatment regularly occur.[10]

The Chinese government’s response ignores the roots of the dire predicament that many North Koreans face. The discriminatory nature of North Korean society, based on songbun, means that certain segments of the population are faced with severe economic discrimination, significantly limiting an individual’s access to sustenance based on social standing, religion, and political opinion.[11] Furthermore, no matter their original intention for leaving, those who flee North Korea become refugees the moment they cross the border. The majority of those leaving North Korea are not political dissidents as such.[12] However, due to the repressive and vindictive nature of the North Korean regime, these refugees are considered as traitors the moment they cross the border into China. Thus, even a North Korean leaving the country for economic reasons becomes a refugee sur place in China due to the credible fear of persecution upon return.[13]

In the EU

The refoulement of refugees in the 21st century under the justification that they are economic migrants has not been solely limited to North Korea’s most significant ally, but one of North Korea’s harshest critics as well. Like China, the EU has been involved in returning refugees to countries where their safety is threatened. The EU also widely claims to treat refugees in accordance with human rights law and principles. Yet, despite the prevalence of its humanitarian discourse, the EU has also denied asylum to refugees seeking protection from unsafe conditions in their home countries. Through the use of the label “economic migrant,” the EU has shirked its responsibility to protect vulnerable individuals. The EU is party to a robust and comprehensive regime of human rights laws that is intended to protect the fundamental rights of all individuals in Europe. Like China, the EU’s member states are bound to the 1951 Refugee Convention and its 1967 protocol.[14] The European Convention on Human Rights (ECHR) obliges its signatories to respect human rights, including prohibitions against torture and the collective expulsion of aliens. Additionally, Article 78 of the Treaty on the Functioning of the European Union explicitly requires the EU to ensure compliance with the principle of non-refoulement.[15]

Yet, despite its humanitarian discourse and legal commitments to international and regional human rights laws, the EU has allowed the Mediterranean Sea to become a hotbed for human rights violations by its member states and one of its own agencies. The European Border and Coast Guard Agency, also known as Frontex, is the EU agency tasked with securing the external borders of the Schengen Area. Frontex states that, in line with the EU’s expressed values, the agency operates in a manner that respects fundamental rights.[16] Despite these claims, Frontex has been embroiled in controversy in recent years due to repeated claims of being complicit in human rights violations against refugees. A 2021 report by Der Spiegel and its partners claimed that Frontex works in conjunction with the Libyan Coast Guard and Navy to return refugees to Libya.[17] This has continued to occur despite the 2019 recommendations from the Commissioner for Human Rights of the Council of Europe to cease returning refugees to Libya due to consistent reports of human rights violations.[18] Many of these refugees are placed in detention camps for undefined periods of time, where they are subjected to torture, rape, and slavery.[19] Reports on the conditions in these camps date to the early 2000s, particularly those by Human Rights Watch, which highlight the EU’s failure to abide by its own humanitarian discourse.[20]

Identifying economic migrants posing as refugees has been prevalent in EU border security management and migration control as well. The nature of Frontex’s activities at the EU’s borders center on the “truthfulness” of those that are intercepted, rather than assessments of vulnerability.[21] This sentiment was reflected in 2019 when Italian Interior Minister Matteo Salvini announced a planned security decree that would target “economic refugees.” Salvini justified the decree by stating that Italy has already accepted too many “fake” refugees.[22] Italy plays an important role in this task, as its geographical location is at the EU’s external border along the Mediterranean Sea. The EU has used Italy to strengthen its border security management regime. The country’s EU-backed Memorandum of Understanding (MoU) with Libya provides the Libyan government with financial and material support in exchange for curbing the flow of illegal migrants.[23] However, the Libyan Coast Guard and Navy’s dragnet tactics mean that even refugees are summarily returned without receiving a proper assessment of their vulnerability.

Concluding Remarks
 
The term “economic migrant” cannot be justifiably applied to North Korean refugees, nor is the label accurate for many who try to “irregularly” enter the EU. These refugees are fleeing their country to find safety. The consequences of this trend have been exacerbated by the rise in anti-immigrant and anti-refugee sentiments in developed countries in the 21st century. The perception of refugees in the EU was, in certain member states, negatively altered due to a substantial number of arrivals during the 2015 European migrant crisis.[24]

The EU has repeatedly condemned the North Korean government for its human rights record. Most notably, the EU sponsored the 2003 resolution on North Korean human rights at the UN Commission on Human Rights.[25] It was in this resolution that the Commission expressed its concerns about the scope and gravity of human rights violations in North Korea, and the EU has since continued to sponsor resolutions on North Korean human rights at the UN. The EU has also levied sanctions against North Korea to pressure the government to cease its nuclear weapons program and to stop committing human rights violations. The most recent round of sanctions by the EU came in April 2022, specifically targeting eight individuals and four entities involved in financing the country’s nuclear programs.

However, despite its criticism of North Korean human rights violations, the EU continues to return refugees to countries where they are subjected to the similarly horrendous treatment of North Korean refugees. The EU, as a purported bastion of respect for human rights, must cease the refoulement of refugees to Libya. Its continued collaboration with the Libyan government flies in the face of the principles and values it claims to be founded on. Furthermore, the 1951 Refugee Convention was created in light of the experiences of European refugees fleeing persecution during World War II.[26] Condemning the North Korean government while being culpable of exposing refugees to egregious human rights violations ultimately undermines the EU’s credibility as a normative power in the area of human rights. Additionally, the moral thrust behind the EU’s recent sanctions on China for human rights violations in the country’s Xinjiang region is jeopardized as well.

It should be noted that certain EU member states willingly accepted thousands of refugees during the height of the European migrant crisis, such as Germany.[27] Much effort by the EU is also being directed to resettle Ukrainian refugees fleeing Russia’s invasion.[28] As important as these efforts have been, the EU and its member states are strongly encouraged to abide by their own commitments to human rights, as required by both international and regional human rights laws, in all instances.[29]

Likewise, the Chinese government must not ignore the international human rights laws that it has signed, no matter the agreements that it has with North Korea. These laws take precedence over national laws and agreements between states. The forced repatriation of North Korean refugees back into the hands of a brutal regime violates what is considered to be a fundamental human right, the ability to leave one’s country, which is enshrined in Article 12(2) of the International Covenant on Civil and Political Rights.[30] As these individuals would be subjected to serious and systematic human rights violations in North Korea, the Chinese government is obligated under international law to cease all forced repatriation of North Korean refugees. Additionally, as required by all states that are party to the 1951 Refugee Convention, China must conduct RSD to thoroughly assess an individual’s asylum claim without summarily apprehending and returning them to their country of origin.

While the 1951 Refugee Convention may suffer from a lack of effectiveness and has a restrictive definition of what a refugee can be, it is still important for states to remember the spirit in which it was created. The Convention was designed to provide protection for some of the world’s most vulnerable individuals and groups, an endeavor that should continue to be pursued today.

Bryan Clark is a second-year graduate student at the European School of Political and Social Sciences (ESPOL) at Lille Catholic University in Lille, France, pursuing a Master's in International and Security Politics.
​
[1] William Deane Stanley, “Economic Migrants or Refugees from Violence? A Time-Series Analysis of Salvadoran Migration to the United States.” Latin American Research Review 22, no. 1 (1987): 132–54. http://www.jstor.org/stable/2503545; Stephen B. Young, “Who Is a Refugee? A Theory of Persecution,” In Defense of the Alien 5 (1982): 38–52. http://www.jstor.org/stable/23141002.
[2] UN General Assembly, Convention Relating to the Status of Refugees, July 28, 1951, United Nations, Treaty Series, vol. 189, p. 137, https://www.refworld.org/docid/3be01b964.html [accessed June 12, 2022].
[3] UN High Commissioner for Refugees, “Refugee Status Determination,” accessed June 12, 2022. https://www.unhcr.org/refugee-status-determination.html.
[4] Patricia Goedde, “Determining Refugee Status for North Korean Escapees under International and Domestic Laws,” Sungkyun Journal of East Asian Studies 11 (2011): 143–60.
[5] Ryan Bubb, Michael Kremer, and David I. Levine, “The Economics of International Refugee Law,” The Journal of Legal Studies 40, no. 2 (2011): 367–404. https://doi.org/10.1086/661185.
[6] Andrei Lankov, “North Korean Refugees in Northeast China,” Asian Survey 44, no. 6 (2004): 856–73. https://doi.org/10.1525/as.2004.44.6.856; Lee Jeong-Eun, “UN Asks China Not to Send 7 North Korean Refugees Back Home,” Radio Free Asia, March 15, 2022. https://www.rfa.org/english/news/korea/refugees-03152022182731.html.
[7] Lee Woo-young and Yuri Kim, “North Korean Migrants: A Human Security Perspective,” Asian Perspective 35, no. 1 (2011): 59–87. http://www.jstor.org/stable/42705323.
[8] Roberta Cohen, “China's Repatriation of North Korean Refugees,” Brookings Institution, March 5, 2012. https://www.brookings.edu/testimonies/chinas-repatriation-of-north-korean-refugees/.
[9] Lankov, “North Korean Refugees in Northeast China.”
[10] “China: Redoubling Crackdowns on Fleeing North Koreans,” Human Rights Watch, September 3, 2017. https://www.hrw.org/news/2017/09/03/china-redoubling-crackdowns-fleeing-north-koreans; United Nations, Human Rights Council. Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea. New York, NY: UN Headquarters, 2014.
[11] Russell Aldrich, “An Examination of China’s Treatment of North Korean Asylum Seekers,” North Korean Review 7, no. 1 (2011): 36–48. http://www.jstor.org/stable/43908831.
[12] Lankov, “North Korean Refugees in Northeast China.”
[13] Aldrich, “An Examination of China's Treatment of North Korean Asylum Seekers.”
[14] Rosie Rooney and Marta Welander, “On Its 70th Anniversary, the Refugee Convention Faces Unprecedented Threats across Europe,” Oxford Law Faculty, July 22, 2021. https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/07/its-70th.
[15] European Union, Consolidated version of the Treaty on the Functioning of the European Union, October 26, 2012, OJ L. 326/47-326/390, https://www.refworld.org/docid/52303e8d4.html [accessed May 24, 2022].
[16] Frontex, “Fundamental Rights,” accessed May 24, 2022. https://frontex.europa.eu/accountability/fundamental-rights/fundamental-rights-at-frontex/.
[17] Sara Creta et al., “How Frontex Helps Haul Migrants Back to Libyan Torture Camps,” Der Spiegel, April 29, 2021. https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83.
[18] See “Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, paragraph 3, of the European Convention on Human Rights Application No. 21660/18 S.S. and others v. Italy,” https://rm.coe.int/third-party-intervention-before-the-european-court-of-human-rights-app/168098dd4d.
[19] Human Rights Watch, “Pushed Back, Pushed Around,” September 21, 2009. https://www.hrw.org/report/2009/09/21/pushed-back-pushed-around/italys-forced-return-boat-migrants-and-asylum-seekers.
[20] Human Rights Watch, “Closed-Door Immigration Policy Is Shameful Vision,” September 15, 2004. https://www.hrw.org/news/2004/09/15/closed-door-immigration-policy-shameful-vision.
[21] Katja Franko Aas and Helene O. I. Gundhus, “Policing Humanitarian Borderlands: Frontex, Human Rights and the Precariousness of Life,” The British Journal of Criminology 55, no. 1 (2015): 1–18. https://doi.org/10.1093/bjc/azu086.
[22] “Italian Mayors Clash on Salvini’s Migrant Decree,” InfoMigrants, January 4, 2019. https://www.infomigrants.net/fr/post/14307/italian-mayors-clash-on-salvinis-migrant-decree.
[23] Yasha Maccanico, “Analysis: Italy renews Memorandum with Libya, as evidence of a secret
Malta-Libya deal surfaces,” Statewatch, March 2020. https://www.statewatch.org/media/documents/analyses/no-357-renewal-italy-libya-memorandum.pdf.
[24] Dominik Hangartner et al., “Does Exposure to the Refugee Crisis Make Natives More Hostile?,” American Political Science Review 113, no. 2 (2019): 442–55. https://doi.org/10.1017/S0003055418000813.
[25] David Hawk, Human Rights in the Democratic People's Republic of Korea: the Role of the United Nations (Washington D.C.: Committee for Human Rights in North Korea, 2021). https://www.hrnk.org/uploads/pdfs/Hawk_UN_FINALFINAL_WEB.pdf.
[26] “What Is the 1951 Refugee Convention-and How Does It Support Human Rights?,” Asylum Access, July 24, 2021. https://asylumaccess.org/what-is-the-1951-refugee-convention-and-how-does-it-support-human-rights/.
[27] “Germany on Course to Accept One Million Refugees in 2015,” The Guardian, December 8, 2015. https://www.theguardian.com/world/2015/dec/08/germany-on-course-to-accept-one-million-refugees-in-2015.
[28] “Ukraine: EU Agrees Plan to Aid Refugee Resettlement,” Deutsche Welle, March 28, 2022. https://www.dw.com/en/ukraine-eu-agrees-plan-to-aid-refugee-resettlement/a-61277944.
[29] UN High Commissioner for Refugees, “UNHCR’s Key Calls to the European Union to Better Protect Refugees,” February 1, 2022. https://www.unhcr.org/europeanunion/.
[30] UN General Assembly, International Covenant on Civil and Political Rights, December 16, 1966, United Nations, Treaty Series, vol. 999, p. 171, https://www.refworld.org/docid/3ae6b3aa0.html [accessed June 10, 2022].