CHINA'S DPRK REFUGEE POLICY

Contents
Introduction

     The 1951 United Nations Convention Relating to the Status of Refugees and the supplemental Protocol Relating to the Status of Refugees of 1967 [1] grant basic rights to refugees, and detail the minimum humanitarian standards in areas such as legal status, living conditions, and treatment. This paper will examine how the dramatic increase in the number of refugees fleeing North Korea, and several highly publicized defections via foreign embassies, are focusing unwanted international attention on the Chinese government in regard to the Convention of 1951 and the Protocol of 1967, and therefore exerting pressure on China to reconsider its policy of not granting North Koreans official refugee status. This will involve investigating China’s treatment of North Korean refugees before and after the famine and the high-profile defections, and viewing these actions in the context of regional stability and security issues.

    In the mid and late 1990s severe flooding followed by drought combined with the general inefficiency of the centrally planned North Korean economy, greatly exacerbating an existing famine. (Noland, 2002) As many as two million North Koreans may have died due to the famine, with some estimates much higher. (Country Report: North, 2002)  In addition to those seeking to escape political repression, the continuing food shortages have resulted in waves of North Koreans fleeing across the border into China to search for food, shelter, and employment, creating a refugee problem where anywhere from a few tens of thousands to as many as 300,000 North Korean refugees may be living. (Glosserman & Snyder, 2002)

     Although North Korea’s history of political oppression and treatment of returned defectors is well documented, [2] the Chinese government continues to classify the North Koreans as food or economic migrants, rather than political refugees. The articles of the 1951 Convention and the 1967 Protocol, therefore, are not applied to the North Koreans within the Chinese border. Instead an agreement with North Korea to return defectors is honored. However, the “North Korean Penal Code lists defection or attempted defection as a capital crime, and the families of defectors also face retribution and possible imprisonment.” (Glosserman & Snyder, 2002)  They cannot return or be returned without persecution.    

     Before discussing China’s refugee policy and concerns, the various international agreements covering refugees, and their applicability to North Koreans specifically, will be covered. China’s historically influential, but waning, role in the formation of contemporary North Korea will also be examined. This role is significant because China’s current refugee policy is related to maintaining influence in North Korea, although its relative level of influence has been reduced.  
International Agreements & the Status of North Koreans in China

     The UN Convention Relating to the Status of Refugees of 1951 and the supplemental 1967 Protocol Relating to the Status of Refugees are the two primary agreements, or laws, referred to when discussing refugee rights. The UN recognized from its beginning in 1945 that refugees were a matter of international concern of collective responsibility. This led to the Convention of 1951, which grants refugees several basic rights, including that of religion, access to courts, rationing (where such systems exist), housing, public education, freedom of movement, and most importantly, the prohibition of expulsion or repatriation, [3] also known as “refoulement.” The Convention also clearly defined a refugee as a person who:
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country… or, owing to such fear, is unwilling to return to it. (Convention, 1951: Article 1., A., 2.)
     Because the Convention was limited to persons displaced as a result of events that occurred before 1951, the Protocol of 1967 amended the Convention to ensure “that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951.” (Protocol, 1967) China became party to both the Convention and the Protocol on September 24, 1982. (Participants Convention, 2002 & Participants Protocol, 2002)

     When considering the case of North Koreans residing in China, four Articles of the Convention are of particular importance: Article 1 on the definition of refugees (see above), Article 33 on the Prohibition of expulsion or return, Article 38 on the Settlement of disputes, and Article 42 on Reservations. Article 38 refers any dispute in interpretation or application by parties of the Convention to the International Court of Justice, while Article 42 defines the articles that are inclusive.[4]  

     Articles 1 and 33 are the most critical. Because it has been China’s longstanding position that North Koreans are economic migrants, [5] and therefore cannot be defined as refugees under Article 1, they are often returned to North Korea. (Glosserman & Snyder, 2002) If North Koreans were recognized as refugees, Article 33, which prohibits the expulsion or return or refugees when they would be somehow threatened by that act, they would be protected from “refoulement.” The conflict with the Chinese position and the Convention is that the very act of crossing the border into China criminalizes the North Korean, and they face certain and severe punishment upon return to their nation, per Article 47 of the North Korean penal code. (Rosett, 2002) This type of situation was clearly one of the reasons that the UN General Assembly stressed that refugees who had expressed any valid objection to returning to their nation of origin should be not forced to do so. (History of UNHCR, 2001)  However, the slight ambiguity in Article 1 of the Convention and the criminal status North Koreans acquire after crossing the border have created this disputed loophole, which while not adhering to the spirit of the agreement, may be within the letter of the law. It appears to be a matter for Article 33 – resolution by the International Court of Justice.

     China repatriates North Koreans under a separate 1986 agreement [6] with North Korea covering illegal migrants and criminals. (Rosett, 2002) China and North Korea reportedly concluded another agreement in November of 2001 that covers management of the border crossing system. (Agreement signed, 2001)
The Boundaries of China’s Influence over North Korea

     Understanding the nature and limits of China’s influence over North Korea is essential to understating China’s contemporary position and behavior in regard to the North Korean refugee situation. This is especially true since China’s ability to produce change in North Korea is often exaggerated, [7] and some are now expecting China to somehow improve North Korea’s behavior.

     China and Korea have had a close association since prehistoric times, with China often taking the traditional role of the “older brother,” or the role model associated with Confucianism.  In ancient times, most new inventions, techniques, philosophies, and religions came to the peninsula via China. This is reflected in the fact that about seventy percent of modern Korean is based on Chinese loanwords, which was the language of the Korean literati [8] for centuries. (Story & English, 2001: 39)

     The influence of communist Chinese has left a lasting mark on North Korea as well. If the former Soviet Union created the conditions and support that facilitated the formation of North Korea after World War II, then the People’s Republic of China enabled the continued survival of the regime with massive military assistance during the Korean War. In those early days North Korea was ideologically and militarily dependent upon the two major communist Cold War powers. While both China and North Korea were consuming Western communist ideology, North Korea followed China’s particular implementation of communism very closely.

     This emulation is apparent in several areas. Although grossly exaggerated, Kim Il Sung, like Mao, had a personality cult. Many social and organizational aspects were remarkable similar, from manner of dress to the rationing and coupons systems. North Korea’s system of citizen classification [9] based on past status, i.e. peasant or landowner, also follows China’s. The Chinese penchant for assigning memorable catch phrases to programs meant to increase worker mobilization or to inspire the revolutionary spirit was not lost on the North Koreans, who had the “Flying Horse Movement,” (Suh, 1988: 369) and the “Movement to see Dawn Stars,” [10] among many others. 

     However, the relationship has had its upsets, and China’s influence on North Korea has limits. Perhaps the best early examples of this are found in the events surrounding the Sino-Soviet, Soviet-Korean, and Sino-Korean disputes, which weakened ties on all sides. The Soviet-Korean dispute came when North Korea tried to readjust its relationship with the Soviet Union. The problems that arose between China and North Korea, however, did not come so much from the Korean efforts to normalize with Russia, but from the “radical Red Guard movement of the Cultural Revolution.” (Suh, 1988: 190)  The Sino-Korean dispute was resolved in 1970, but the relationship was an adjustment to new circumstances, rather than a restoration of old ties. (Suh, 1988: 189) An indication of this was the December 1972 alteration of the North Korean constitution, which among other changes promoted Kim from Party Premier to national President. This was significant because it officially shifted from Communist Party orientation to that of an independent state and autonomous leader with a title separate from the Party.  Also significant was the replacement of communist doctrine with that of Chuch’e. [11] (Suh, 1988: 275)

     From the 1950s North Korea began to take the steps needed to build a nuclear program (Yoo, 1995: 55), and directly requested assistance with that program from China in 1964 and 1974, but those requests were declined (Oberdorfer, 2001: 252), making North Korea a disappointed ally. The 1972 U.S.-China rapprochement, [12] the 1992 establishment of diplomatic ties with South Korea, and especially the economic and (limited) military partnerships with South Korea (Lee, 1999) have further threatened North Korea, and reduced China’s ability to exercise a substantial amount of influence there. 

     However, there is still some level of influence, and “China has instituted a pragmatic policy of reinforcing economic relations with South Korea while maintaining vestigial political ties with North Korea.” (Snyder, 1997)  Kim Jong-Il’s recent visits to China have been viewed as a “new receptivity to reform” (Noland, 2002), and North Korea reportedly made several fundamental changes to its economic system [13] over the summer of 2002 that demonstrate the nation is attempting to emulate some of the most successful aspects of Chinese reform. (Bray, 2002)  In late September North Korea announced the creation of a special economic zone (SEZ) in Sinuiju, on its Northern border with China. Yang Bin, a Dutch citizen of Chinese ethnicity was named as the project leader. (FlorCruz, 2002) While results have yet to be seen, clearly North Korea is modeling these reforms after China.

     It is very important to recognize the limits of influence that China now exerts over North Korea, which should be characterized as that of a role model rather than an authority that issues orders:    
China's official relationship with North Korea has been limited primarily to ceremonial exchanges and celebration of key anniversaries in the absence of direct personal ties formerly enjoyed by first-generation revolutionary comrades such as Kim Il Sung and Deng Xiaoping. In contrast, Jiang Zemin's week-long visit to South Korea in late 1995 focused on the future, including the fostering of economic relations. (Snyder, 1997)

China’s Refugee Policy & Concerns of Regional Stability

     China is currently host to approximately 280,000 officially recognized refugees, none of them North Korean. [14] (Country Report: China, 2002)  While human rights groups and related non-governmental organizations (NGO), China and Korea watchers, and of course South Koreans, have been acutely aware of the situation for several years, the presence and plight of North Korean refugees in China is currently receiving much more attention than in the past. This is especially true in the wake of a devastating famine in North Korea resulting in a larger number of refugees, but more recently after several highly publicized defections. For example, in June of 2001 several North Korean sought asylum in the offices of the UN High Commissioner for Refugees in Beijing. (Tang, 2001)

     However, the year 2002 has witnessed several high-profile cases, one right after the other. In March of 2002 a group of 25 North Koreans entered the Spanish embassy in Beijing, staying for several days before being allowed to depart China. (China warning, 2002) This was followed by bids for asylum at both the U.S. and German embassies in April. (Asylum seekers, 2002) Two of the most controversial defections occurred when Chinese security guards forcibly removed asylum seekers from the Japanese consulate in Shenyang in May (Glosserman & Snyder, 2002), and a similar incident occurred at the South Korean embassy in June. (Gittings, 2002)  More recently, 15 North Koreans gained access to a German diplomatic compound in Beijing, and were eventually granted asylum. (Deal reached, 2002) 

     These incidents have had the overall effect of expanding the North Korean refugee issue from a few specialized NGOs or area specialists, to front-page news, and dramatically raising the level of international awareness. And while they represent victories for a few refugees, tens or hundreds of thousands more have been put at risk by focusing unwanted attention on the policies of the Chinese government in regard to North Koreans:
Previously, Chinese authorities largely turned a blind eye to these refugees (although some were returned). Recognition of the grim reality of life in North Korea encouraged them to do so. Beijing also reached a modus vivendi with NGOs that kept a low profile and worked quietly to help the refugees and, in several cases, to help them find asylum in other countries. [emphasis added] The recent high-profile escape attempts have forced China to shut down this underground railroad. Although the intent of the human rights NGO leaders to solve the plight of North Korean refugees is admirable, the international spotlight has thus far been counterproductive. (Glosserman & Snyder, 2002)
     The current hard-line approach to refugees and crackdowns therefore represent a distinct change in how China is dealing with the refugee problem. Until the late 1990s, the Chinese government “unofficially tolerated both cross-border trade as well as some migration from North Korea.” (Invisible Exodus, 2002) The types of people who crossed over into China began to change, from healthy males looking for work to malnourished people seeking food, especially in the late 1990s when the famine became worse.[15]

     Before defections became highly publicized and politically embarrassing for China, “enforcement efforts seem to have been most consistent against persons specifically requested by North Korean officials rather than the general migrant population” (Democratic People’s, 2000), although there were occasional crackdowns. While it is true that the highly publicized defection attempts have forced China to allow a few refugees leave, the majority will pay the price. The increased international awareness, rather than having the desired effect of forcing China to grant refugee status to North Koreans, has instead seemed to largely remove what little autonomous decision-making ability many sympathetic Chinese officials were able to exercise in the past.

     Besides increased security around foreign embassies and consulates, the number of border and checkpoint guards, which have been replaced with armed soldiers in some cases, has increased, and the number of crackdowns, searches of public places, and even house-to-house searches has intensified with the waves of high-profile attempts at defection, resulting in large and frequent deportations. (Invisible Exodus, 2002)  One result has been a large decrease in the flow of refugees coming into China. (Glosserman & Snyder, 2002)

     The human rights abuses in North Korea are well documented [16] bringing unwanted attention not only from the mass media, but also from the U.S. government. This is reflected in the passage of both Senate and House resolutions calling on the Chinese government to honor obligations under the 1951 Convention and the 1967 Protocol in regard to North Korean refugees, and more specifically to provide asylum and cease repatriation. (Concurrent Resolution 114, 2002 & Concurrent Resolution 213, 2002) China’s handling of refugees has caused tension between with the governments of Japan and South Korea as well. (Gittings, 2002)

     When considering the plight of the refugees in China, it is also important to note that the maintenance of political and social stability in North Korea is the shared objective of the regional powers, and that there are larger issues involved. (Noland, 2002) Along these lines, even the South Korean consular authorities in China routinely ignore requests for asylum by ordinary North Korean refugees, instead selecting defectors with potentially useful information. (Kang, 2001: 206 & Snyder, 1997) The fact that there are many North Koreans who have lived in China for years and have made repeated crossings suggests that more refugees would attempt to go to China in the event of greater instability in North Korea, with the intent of either working in China, or as a stop on the way to the South. That is also precisely what some NGOs have been trying to accomplish:
These acts [of high-profile defections] are being assisted and facilitated by human rights NGOs in an attempt to focus international attention on the plight of the North Korean people and to force the Chinese government to recognize North Korean refugees as political refugees with a right of asylum. The theory is that if UN refugee camps are established on the China-North Korea border, they will incite a flood of North Korean refugees who want to escape political oppression in North Korea, leading to the same type of regime collapse in North Korea that occurred in East Germany. (Glosserman & Snyder, 2002)
     This hypothetical “mass exodus,” accompanied by instability in P’yŏngyang and the collapse of the Kim Jong Il regime, is precisely what the Chinese government fears. (Country Report: China, 2002) 

     In addition to the influx of refugees, the negative effects of North Korea’s fiscal instability have already been felt in China’s border region, where some Chinese companies that did business with North Korean companies were bankrupted. Both of these factors have “presented China with the dilemma of balancing its humanitarian and treaty obligations while maintaining stability. (Snyder, 1997)

     For years China have been aiding North Korea with de facto subsides via private transactions, barter, and cross-border trade, as both a method to increase Chinese influence, and to help prevent the possible collapse of the North Korean system. Some estimates put China’s grain contribution to North Korea in the mid and late 1990s – in the form of government-to-government aid, subsidized trade (i.e., aid), and barter – at about one million tons of grain per year. (Snyder, 1997) And because North Korea is about the size of a small Chinese province, for “a relatively small expenditure China can keep North Korea on economic life-support” (Noland, 2002), and therefore avoid the massive influx of refugees along with the other consequences of a North Korean regime or government collapse.

     Moving beyond concerns or North Korea’s social, and fiscal instability are larger regional security issues. Tensions on the peninsula are again on the rise since North Korea’s October 4, 2002 admission of a nuclear weapons program, in addition to possessing “more powerful things,” perhaps alluding to chemical or biological weapons. (McGeary, 2002 & Sanger, 2002)  While seeming a weak justification, a massive exodus of could further destabilize an already insecure and perpetually declining North Korea. Thus China’s policy of discouraging further North Korean refugee movement has been implemented with the perceived end of preventing further instability, rather than as a means to gain positive influence. However, the actual results of the policy, as they are related to North Korean stability, are debatable. 
Conclusions

     In summary, the Convention of 1951 and the Protocol of 1967 probably do define North Korean’s in China as refugees, rather than economic migrants. However, due to slight ambiguity in the Convention definition, and the fact that the Koreans are criminalized by the act of leaving rather than before, the Chinese government has used this perceived loophole to refuse North Koreans refugee status, and the rights that come with that status.

     Before the highly publicized defections in 2001 and 2002, Chinese officials largely turned a blind eye to the illegal North Korean refugees, often understanding and being sympathetic to their situation, and most usually returning only those specifically requested by the North Korean government. However, the unwanted attention brought by the repeated high-profile North Korean refugee defections and attempts to gain asylum in embassies and consulates, and the related negotiations, have caused a hardening of attitude on the part of some Chinese leaders. Thus, the defections have effectively tied the hands of many sympathetic officials who were otherwise happy to look the other way previously, and put thousands of other refugees in danger of deportation and the consequences defection bring in North Korea. This, of course, is the exact opposite effect many human rights groups and NGOs had hoped for. Although harsh, the policy has discouraged further migration and defection.  

     While the issue of North Korean refugees has (rightly) been characterized as a human rights issue, since they face near certain imprisonment [17] in concentration camps upon repatriation, China considers the refugees in the larger context of regional stability, and therefore, security. Additionally, China recognizes the limited influence it has with North Korea in practical terms, and views the recent crackdown on refugees as the proverbial “finger in the dike,” rather than a permanent solution.

     Although the situation is currently bleak for North Korean refugees in China, there are two factors to consider that may improve their situation. First, the bad news may turn into good news. In other words, the current negative impact of increased awareness may be a short-term effect, and China may be able to find a more satisfactory arrangement in the long-term. The increased international attention and awareness of the dire situation of the North Koreans may bring unlooked for solutions in the future. Second, human rights groups and NGOs have recently changed their tactics by planning to organize protests at Chinese diplomatic missions and UN offices rather than attempting the dangerous defections, which have had rather the wrong result so far. (Brooke, 2002)  While the effectiveness of the new tactic is also questionable, it is currently the only path available.[18] 
Notes

[1] Hereinafter referred to as the Convention and the Protocol, respectively. See Convention (1951) and Protocol (1967) in the bibliography.
[2] For current and detailed information and reports, see Citizens Alliance (2002) and Chosun Journal (2002).
[3] Articles 4, 16, 20, 21, 23, 26, & 33, respectively.
[4] Articles 1, 3, 4, 16 (1), 33, & 36-46 are inclusive and cannot be noted as a reservation. (Convention, 1951)  China’s reservations to the Convention include the latter half of Article 14, and Article 16 (3). (Participants Convention, 2002)
[5] However, the “UN refugee agency expresses concern; says 'food migrants' probably meet criteria for protected political refugee status, which would make their return illegal under international law.” (Rosenthal, 2000)
[6] The text of the 1986 agreement is often referred to in media reports but almost never specifically cited. It was possibly “framed in the context of Chinese migration to North Korea during the famine of the Great Leap Forward.” (Invisible Exodus, 2002)
[7] For example, see Clifford (2002).
[8] To be considered educated in South Korea, one must know several hundred Chinese characters, and 1,800 characters are taught in the public school system, although they are complicated rather than simplified. Additionally, the vast majority of Korea names are based on three Chinese characters, although that is beginning to change. North Korea discontinued the use of Chinese characters.
[9] Sŏngbun, or “element” (성분 / 成分).
[10] The “Flying Horse Movement” (Ch’ŏllima Undong / 천리마 운동 / 千里馬), was named after a legendary Flying Horse said to have traveled 1,000 li in a single day, and thus was a symbolic term for great speed. This movement was modeled after China’s Great Leap Forward. The “Movement to see Dawn Stars” (Sae Byŏk Byŏl Pogi Undong / 새벽 별 보기 운동) was a smaller scale movement designed to increase output by going to work earlier each morning.
[11] Chuch’e, (주체) also Romanized as Juch’e, is projected by North Korea as a universal truth and a “creative application of Marxism and Leninism to the condition peculiar to the country” in the spirit of self-reliance: basically a North Korean attempt to be self-sufficient as a reaction to past domination. (Suh, 1988: 301 & 305)
[12] The fact that China welcomed Nixon while the U.S. bombed Vietnam, a communist ally, was sure to make a lasting impression in P’yongyang. (Kang, in Alagappa, 1998: 243-244)
[13] Perhaps three of the most significant were reform of the food production system, moves away from the rationing system to a more market-type system for both food and consumer goods, and the introduction of both rent and fee-for-service utilities. (Bray, 2002)
[14] “Including 281,000 from Vietnam, about 800 from Laos, smaller numbers from other countries, and an unknown number from Burma.” (Country Report: China, 2002)
[15] As late as December 2000, a colleague of the author spotted two North Korean who men crossed a low spot in the river near Sinuiju, North Korea, to a location near Dandong, China, while sightseeing. This was in broad daylight and in full view of border guards in an area with foreign tourists.
[16] For current and detailed information and reports, see Citizens Alliance (2002) and Chosun Journal (2002).
[17] Many also face torture and execution. Punishment is decided from several factors, including the political history of the family, as well as the individual performance of the individual. However, punishment, including execution, is also often arbitrary. (Kang, 2001: 57)
[18] For other options, see the “Get Involved” link on the Chosun Journal (2002) site.
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