The Plight of North Korean Migrants in China

By Emma DiGiovanni,  HRNK Research Intern
Edited by Rosa Park, HRNK Director of Programs and Editor, and Camille Freestone, HRNK Research Intern

July 21, 2020

In 2004, the UN High Commissioner for Refugees (UNHCR) declared North Korean migrants in China “persons of concern,” who must not be repatriated before their status is established and their safety guaranteed.[1] In 2014, however, a UN investigative report suggested that China’s treatment of North Korean migrants amounts to the aiding and abetting of crimes against humanity.[2] In what ways does China’s handling of North Koreans violate international protocol, and how does this shape the plight of North Korean migrants in China? 

​Legal Framework 
 
In 1982, China acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.[3] Together, the two treaties established an international framework for protecting refugees from persecution and securing their access to certain rights and services.[4] They stipulate that a refugee is a person who is unable to return to his or her country due to a well-founded fear of persecution on the basis of race, national origin, religion, membership of a social group, or political opinion.[5] However, most international treaties in China can only be enforced if Chinese law has translated them into domestic law or authorized their application, and Chinese law has done neither with the Convention and Protocol. Therefore, despite being a party to these treaties, China has no political will to enforce them.[6] Any mention of refugee protection and asylum in Chinese law can be found in two articles of the 1982 Chinese Constitution and the 2012 Law on Exit and Entry Administration. Article 32 of the Constitution states that migrants can obtain asylum for political reasons, and Article 46 of the Law on Exit and Entry allows people who have been officially recognized as refugees to have identification documents and stay in China. It also allows those whose refugee status is under determination to receive temporary identification documents and temporary residence in China. However, domestic law in China does not clarify who qualifies for refugee status, which government agency should handle the refugee determination process, or how people can apply for refugee status. In sum, although Chinese domestic law grants certain rights and protections to refugees on paper, there is no national adjudication process for actually identifying refugees.[7]
 
China has also afforded the UNHCR only limited access to North Korean refugees on its border with North Korea.[8] It permitted the establishment of a Branch office in 1995 that predominantly processed Vietnamese migrants, but when the UNHCR began granting North Korean migrants refugee status, China restricted the agency’s purview.[9] In the past, some North Korean migrants were able to secure refuge at embassies in China, as was the case for 25 North Koreans who successfully were able to move to South Korea from China’s Spanish Embassy in 2000. However, the Chinese government has responded by fortifying embassy security with police officers and barbed wire in an effort to deter migrants seeking refuge.[10] In 2002, a young family from North Korea attempted to enter the Japanese Consulate in Shenyang, China but was forcefully dragged away by Chinese guards. Largely due to publicity, the family was eventually allowed release to South Korea, an extremely rare fate for North Koreans apprehended in China.[11]

Forcible Repatriation  
 
Since North Koreans in China are unable to obtain asylum, they will be forcibly repatriated if caught by authorities. In direct violation of international treaties that prohibit the expulsion of migrants who would be threatened upon return to their country, China forcibly repatriates around 5,000 to 6,000 North Korean migrants a year, as of 2013.[12] Current statistics on the repatriation of North Koreans in China are difficult to find, and China has been unwilling to share information regarding its repatriation policy. In 2013, Michael Kirby, the chair of the Commission of Inquiry on Human Rights in North Korea, sent a letter to Haitao Wu, China’s Deputy Permanent Representative to the UN, requesting the number and demographics of North Koreans who have been repatriated in China, but Wu declined to offer specifics in his response.[13] China justifies the repatriation of North Koreans by referencing the Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas between China and North Korea, otherwise known as the Repatriation Treaty, which was enacted in 1986. Under this protocol, China agrees to repatriate all undocumented North Korean migrants.[14] Although Article 33 of the Convention explicitly prohibits refoulement, China further defends its repatriation policy by claiming that North Koreans in its territory are not “refugees,” but rather, “illegal economic migrants” in search of financial gain, to whom the Convention’s provisions do not apply.[15]
 
Contrary to China’s claim that North Koreans are “illegal economic migrants,” studies from Human Rights Watch (HRW) and the Committee for Human Rights in North Korea (HRNK) demonstrate that many North Koreans migrate because of persecution, often on the basis of political opinion, but also because of social class and family ties.[16] Further, according to the UNHCR, an economic migrant is someone who emigrates “exclusively” for economic reasons.[17] Yet, even North Korean migrants seeking financial prospects almost always qualify as refugees because financial insecurity in North Korea is often tied to persecution on the basis of socio-political status (songbun).[18]

Moreover, according to the UNHCR, North Korean migrants can be classified as refugees sur place, or people who are refugees not because of persecution they experienced in their country, but because of persecution they would surely face if forced to return. Under this standard, even people believed to be economic migrants can qualify as refugees because in North Korea, it is a crime to emigrate without authorization.[19] Forcible repatriation to North Korea guarantees that migrants will be arrested, detained, beaten, tortured, and subjected to heinous abuses, such as sexual violence, forced abortion, forced labor, and death. Punishment may be even worse if migrants are discovered to have interacted with foreigners, such as journalists, Christians, and humanitarian workers, or to have sought political asylum or transfer to South Korea.[20]
 
Regrettably, although they violate the Convention, China’s policies for handling North Korean migrants cannot be challenged in the International Court of Justice (ICJ).[21] When it acceded to the Convention and Protocol, China’s National People’s Congress adopted a reservation regarding Article 4. The article stipulates that disputes can be referred to the ICJ when other methods of mediation fail. With the reservation, referral to the ICJ is not possible.[22]

Conclusion
 
Because North Korean migrants in China will be forcibly repatriated if discovered by law enforcement, many choose to stay in China temporarily while they arrange travel to other countries.[23] However, during their time in China, they live in constant fear of incarceration by Chinese authorities.[24] Because they cannot turn to law enforcement for help and their identities are not officially recognized by the state, they are particularly vulnerable to exploitation. For instance, between 70% and over 90% of North Korean women in China are trafficked, and many are sold into marriage or forced sex work.[25] In 2016, 30,000 children in China born to North Korean mothers were deprived of citizenship, education, and healthcare.[26] Furthermore, third parties such as NGOs and UN agencies are granted little to no access to North Korean refugees in China, and even Chinese citizens may be punished for aiding migrants from North Korea.[27]

China should grant refugee status to North Korean migrants and host those seeking transfer abroad without threatening them with repatriation.[28] China’s need for a comprehensive refugee adjudication system that complies with international standards and recognizes the imperative of protecting North Korean migrants cannot be understated. Such a reform would celebrate human rights and signify to North Korea that it has absolutely no ally in its denigration of the rights and dignity of its people. 

Emma DiGiovanni is a rising senior at Cornell University, majoring in Government with a minor in Law & Society.

[1] Roberta Cohen, "Legal Grounds for Protection of North Korean Refugees," Brookings Institution, September 13, 2010, https://www.brookings.edu/opinions/legal-grounds-for-protection-of-north-korean-refugees/.
[2] "China rejects U.N. criticism in North Korea report, no comment on veto," Reuters, February 18, 2014, https://www.reuters.com/article/us-china-korea-north/china-rejects-u-n-criticism-in-north-korea-report-no-comment-on-veto-idUSBREA1H0E220140218.
[3] Guofu Liu, Chinese Refugee Law (Boston: Brill, 2020), 72.
[4] "The 1967 Protocol," Andrew & Renata Kaldor Centre for International Refugee Law, last updated September 2018, https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol.
[5] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 10 June 2020]
[6] Lili Song, "China and the International Refugee Protection Regime: Past, Present, and Potentials," Refugee Survey Quarterly 37: No. 2 (March 2018): 147-148, https://doi.org/10.1093/rsq/hdy003. 
[7] Song, "China,” 147. 
[8] Cohen, "Legal Grounds."
[9] Jeanyoung Jeannie Cho, "Systemizing the Fate of the Stateless North Korean Migrant: A Legal Guide to Preventing the Automatic Repatriation of North Korean Migrants in China," Fordham International Law Journal 37, No. 1 (2013): 207-208, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2326&context=ilj. 
[10] Cho, "Systemizing,” 208-209.  
[11] James Brooke, “A Human Face on North Koreans’ Plight,” The New York Times, August 21, 2002, https://www.nytimes.com/2002/08/21/world/a-human-face-on-north-koreans-plight.html.
[12] Cho, "Systemizing,” 205.  
[13] Roberta Cohen, “China’s Forced Repatriation of North Korean Refugees Incurs United Nations Censure,” International Journal of Korean Studies 18, No. 1 (2014): 68, http://icks.org/n/data/ijks/1482467285_add_file_4.pdf.; United Nations Human Rights Council, “Report on the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea,” Annex to the report—Correspondence with China, 7 February 14, A/HRC/25/63. (www.ohchr.org/Documents/HRBodies/HRCouncil/CoIDPRK/Report/A.HRC.25.63.doc)
[14] Cho, "Systemizing,” 204.   
[15] Cho, "Systemizing,” 182-183.  
[16] Cho, "Systemizing,” 214-215.
[17] Cho, "Systemizing,” 213. 
[18] Cohen, "Legal Grounds."; Robert Collins, Marked for Life: SONGBUN, North Korea’s Social Classification System (Washington, DC: The Committee for Human Rights in North Korea, 2012). 
[19] Cohen, "Legal Grounds."
[20] Cohen, "Legal Grounds."
[21] Cohen, "Legal Grounds."
[22] Guofu Liu, Chinese Refugee Law (Boston: Brill, 2020), 72.
[23] Cho, "Systemizing,” 205.
[24] Cho, "Systemizing,” 205-206.
[25] Cho, "Systemizing,” 206.
[26] Jenna Yoojin Yun, "30,000 North Korean children living in limbo in China," The Guardian, February, 5, 2016, https://www.theguardian.com/world/2016/feb/05/north-koreas-stateless-children. 
[27] Cho, "Systemizing,” 207.
[28] Phil Robertson, "North Korean Refugees Trapped by China’s Expanding Dragnet," News Deeply, September, 18, 2017, https://www.newsdeeply.com/refugees/community/2017/09/18/north-korean-refugees-trapped-by-chinas-expanding-dragnet.