China and the International Asylum Regime: 
The Case of the North Korean Refugees
by James D. Seymour
November 2000

This is an expanded version of an article which appeared in China Rights Forum, Summer/Fall 2000

North Korean Refugees in China

Since the end of the era of Mao Zedong, China has made strides toward joining the international community and participating in the system of international law. This even includes, to a limited extent, becoming involved in international human rights issues.^[1] However, with the influx of North Korean refugees, China's willingness to comply with international human rights law has been severely tested.

     The office of the UN High Commissioner of Refugees estimates that throughout the world  there are about twenty million refugees. Under the international human rights regime, the country of first refuge is required to accept such people temporarily, until they can return to their countries or a new home is found for them in some country. This system works tolerably well when the first country of refuge cooperates with the UN High Commission on Refugees (UNHCR), but this is not always the case.

     When the subjects of refugees and the Peoples Republic of China come up together, it is usually a question of refugees from China. But in fact there are many refugees in China itself, escaping rights deprivations elsewhere even worse than they expect to encounter in China. The first group of foreigners coming to the PRC were people fleeing Vietnam in the wake of the war there; they were mostly individuals seeking to escape the turbulence and the depressed postwar economy. Now there is a new wave of refugees, North Koreans, a phenomenon little noticed abroad.

     Of course, people in the Democratic People's Republic of Korea (DPRK) have always suffered extreme civil deprivations. But in recent years the socialist economy has also failed (declining every year from 1990 to 1998), and much of the population has been literally starving in what United Nations experts have called a "slow-motion famine."^[2] Calculating anything in this closed society is difficult, but estimates of how many have died range from hundreds of thousands to 3.5 million (out of an original population of about 23 million). The famine peaked in 1996-1997, when deaths by starvation ran at about 50 per 1000; the rate is now lower, due in part to the natural cycle of famines (the weakest die first; after that there is more food available for the strong) and in part to the arrival of some international aid.^[3]

     Fortunately for the refugees, the area of China north of Korea is populated by ethnic Koreans. Known by the Chinese as the autonomous prefecture of Yanbian ("Yonbyon" in Korean), this part of Manchuria used to be populated by descendants of people who came from Korea beginning the 17th century. There was another influx in the 19th century, especially after the Korean famine of 1869. All of this emigration was in violation of Korean law, but it became legal after the Japanese took over the country, and was especially common after the 1932 establishment of the Japanese puppet state of Manchukuo in northeast China.

     The latest exodus from North Korea began even before the famine. Around 1995 most migrants were reasonably well-nourished males. At that time China does not seem to have viewed them as a significant problem, and did little to stem the tide. But around 1998, the nature of the migrant population began to shift, with the majority now comprised of women and children, usually under-nourished. Over the years, the exodus grew and became more and more organized. To leave the DPRK most people have to pay bribes to Korean soldiers. (The going rate: 500 won, or three months' typical salary.) Soon, the numbers leaving seemed beyond China's capacity to absorb. This coincided with a period of growing unemployment caused by the restructuring of the state-owned sector; China's northeast was particularly hard hit by this trend. It was not an ideal time to have to deal with so many immigrants, by now numbering at least 100,000 and possibly more than 200,000.

     In recent decades the Korean portion of the Yanbian population has slipped from a solid majority to only 40 percent--due to the arrival in the area of many ethnic Chinese.^[4] Still, there are a sufficient number of ethnic Koreans to enable the new arrivals to blend in. They go to great lengths to do so (using makeup and dressing like locals), but they are still always in danger of being discovered by Chinese police or North Korean agents. Some of the immigrants are able to find work and housing in local factories run by Christian churches. Others work on farms, perhaps earning $70 a year. It is a dangerous life both for the refugees and the local Samaritans. The police often issue threats to households and churches suspected of aiding illegal immigrants. Employers, who are subject to fines of 30,000 yuan for harboring illegals, often require them to move on. Thus the refugees transfer from safe house to safe house, remaining indoors (sometimes in secret tunnels or cavities) except when going outside is absolutely necessary. The children, being unregistered, have no possibility of attending school.

     Today, more than three quarters of the refugees are women. Female refugees tend to have more options than do males. Many women have found employment and shelter as domestic workers. Although the arrangements are often exploitative, the women consider themselves lucky compared with starvation in North Korea. But many of the women are virtual sex slaves, before leaving their country having placed themselves in the hands of professional "bride traffickers." Many North Korean parents think that it is better to send their daughters to China than for them to remain home hungry. At the same time, many of China's ethnic Korean farmers often have difficulty finding local wives (the young women having been lured to the cities to work). Sometimes the system produces happy marriages, but all too often the purchased women are resold to other men; sooner or later they land in the hands of the police. Whereas until recently the authorities tended to seek out the men more than the women, that changed in the spring of 2000.

China's Obligations

What obligations does China have to these people, and to what extent have the Chinese authorities been meeting their responsibilities?

     The PRC worries about a possible flood of new refugees. "If we grant political asylum to one refugee today, there could be thousands or millions of North Koreans who might flood China for the same opportunity," said one official. Beijing claims that the only legal obligation is, pursuant to a PRC-DPRK treaty, to return North Koreans who enter China illegally and that it also has political obligations to do so. Explained one official, "Lately, the North has been stepping up demands that we repatriate the North Koreans, especially those who are party members or political criminals."^[5]

     But of course international law overrides any such "obligations." Although China has not fully acceded to very many international human rights agreements, it happens to be a party to the United Nations' 1951 Convention on the Status of Refugees.^[6] That instrument originally defined a refugee as a person who, "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..., owing to such fear, is unwilling to return to it." As written, that did not seem to envision people feeling hunger, but over the years the definition has been broadened to include people escaping environmental catastrophes. Also, because the Convention originally applied essentially to European refugees in the pre-1951 era, a Protocol Relating to the Status of Refugees was adopted in 1967 which universalizes the principal. Article 2 of the Protocol obligates "the national authorities to co-operate with the Office of the United Nations High Commissioner for Refugees and. . .in particular [to] facilitate its duty of supervising the application of the provisions of the present Protocol." Governments must also provide the UNHCR with information concerning the condition of refugees.

     The Convention prohibits the refoulement (forcible return) of refugees to countries where they risk serious human rights violations. Article 33 puts it bluntly: "No Contracting State shall expel or return (`refouler') a refugee...." There are also other human rights treaties, declarations and instruments which, although primarily dealing with other subjects, also bear on the issue of refugees. Very important is the Convention Against Torture, which China ratified in 1988. Article 3 of that Convention provides that no government shall forcibly return "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."^[7]

     Unfortunately, China has been neglecting its obligations under these instruments. People's internationally guaranteed rights to consult with United Nations representatives or lodge asylum claims with the UNHCR have been denied. Indeed, the whole body of international law on the subject has been ignored, with large numbers of refugees having been forced back to North Korea where they face various forms of persecution including torture. In 1999 the number returned was reported to be over 7,000 (about ten percent of the new arrivals). Since then, and especially in the spring of 2000, the authorities have been stepping up their efforts to capture the refugees. In March alone, China is believed to have sent back 5,000. By June it appeared that China had saturated the frontier with guards and patrols, reducing the number of people able to make it across the border.

     Although the United States has occasionally expressed support for the UNHCR's efforts to help the North Koreans, the reaction from most foreign governments to the problem has been muted, and even the UN High Commissioner for Refugees, Sadako Ogata, has usually felt obliged to limit herself to "discreet means" of dealing with the problem.^[8] Still, she has conducted talks with the various governments involved "aimed at clarifying the position of the UNHCR in regard to North Korean political asylum seekers and refugees, and trying to promote a humanitarian approach to this problem in line with universally accepted standards." Alas, the Chinese government has not listened.

When captured by the Chinese authorities, at best North Korean escapees must pay fines, which range from 2,000-5,000 yuan. More likely they will be imprisoned, pending being returned across the border. While confined in China, mistreatment is common, but conditions are still preferable to repatriation. In mid-April, believing they were about to be repatriated, 80 apprehensive prisoners in Jilin Province's Tumen Detention Center rioted, taking two guards hostage for three days. After sending in 100 People's Armed Police, the authorities regained control. The prisoners' fears proved justified; the next day most of them were refouled to North Korea. One man whose job it is to drive such people to the border commented: "Yes, the girls cry; of course they cry. I heard that if they have to send a girl back, she might be tortured. Some of them are so frightened that it is as though they are in shock. All the way to the border, 60 kilometers, they stare ahead saying nothing."^[9]

     The Chinese government claims that these people are illegal immigrants, and argues that since Western governments expel such people, China is within its rights to do likewise. The North Koreans, it asserts, are merely economic migrants, and as such have no rights. One lame argument is that China is just as much within its rights to expel these people as America is in returning people to Cuba.^[10] This argument falls when one considers that food is a human right it is defined as such in the International Covenant on Economic, Social and Cultural Rights, which China signed in 1997. Article 11 not only sets forth "the right of everyone to...adequate food," but asserts an international obligation of all countries "to ensure an equitable distribution of world food supplies in relation to need." China has not participated in the multilateral effort to feed the North Korean people. What little food China has sent has been on a bilateral basis, and most of it has gone straight to the army.

     Furthermore, leaving one's country is a right enshrined in Article 12 of the Covenant on Civil and Political Rights, signed by Beijing in 1998. (China has not ratified either of the covenants.) But in North Korea, seeking asylum in another country may be deemed to constitute the grave political crime of treason, so in effect the attempt to realize one's rights to food and to emigrate is criminalized. Indeed, under the DPRK Criminal Code the death penalty is authorized for escapees. Thus, the UNHCR has taken the position that "the fact that these North Koreans have refused to be repatriated makes them refugees regardless of their motivation of escape." Therefore when the Chinese authorities force people back to North Korea they violate their obligations under international law.

The Returnees' Lot

What happens when such escapees arrive back in North Korea? First they are held for investigation by the Korean State Security Bureau, a process which lasts for ten days to two months. A few may get off with simply a warning, and even people considered minor offenders are sent home after a few months in jail (sometimes to be reincarcerated there). But for those who are repeat offenders, had religious contacts, or simply were abroad more than a year, the outcome is different; they are tried by either the Social Security Department or State Security Department. If the motivation for escape is deemed to be economic, the sentence is still relatively light: detention in a reform center (kyohwaso). One young escapee describes what happened to him after his first unsuccessful flight: "I was caught. They sent me to a labor training camp. There I worked in a housing construction site. When I tried to pause and catch my breath, they started beating and kicking me. Many people died there, but I was young enough to survive for four months until I was released."^[11]

     If the motivation is seen as in any way political, however, the sentence is heavy: sometimes execution, at best life in prison. In 1998 the North Korean authorities began establishing new prison farms for such people. These are forbidding places, with small unheated cells. Food is wholly inadequate. Often prisoners sleep on the cold floor. Bathing facilities are non-existent. There are reports of prisoners being tortured. Conditions are potentially life-threatening. Sometimes an inmate's condition becomes so dire that the wardens will release him or her, rather than have a dead prisoner on their hands.

The Russian Connection

Although most North Korean emigrés seek refuge in China, a few cross the short 16-kilometer Russo-Korean border, or go to maritime Russia via the PRC. Unlike their counterparts in China, Russia's ethnic Koreans, known as Kahyeretz, are very poor, do not speak Korean, and have little sense of kinship with people from Korea. But Russia is still usually a better place for Korean refugees than is China. The UN High Commissioner for Refugees has a stronger presence in Russia, and the South Koreans are also able to help them there. In the late 1990s the Russians handed over 340 North Korean refugees to the UNHCR. Alas, of late not all have been so lucky.

     In one celebrated case, a group of seven people escaped from North Korea in November 1999. They included five adult men (Kim Kwang-ho, Chang Ho-won, Yo Young-il, Kim Woon-chul, and Lee Dong-myung), one woman (Bang Young-sil) and a 13-year-old boy (Kim Sung-il). The group first entered China, and then moved on to Russia. They found refuge in a home in the town of Pervomaiskoe, but were discovered and arrested there by the Russian Border Patrol. Interviewed on Russian television, they said they feared execution if they were returned to North Korea, and they wanted to go to South Korea or a third country. At first the Russians agreed to send them to Seoul, and seats were reserved for them on an airplane. But China, which President Boris Yeltsin was about to visit, objected, and the Russians fell into line. The Russian ambassador in Seoul, Afanasiev, declared that Russia would not tolerate the use of its territory as a route of passage for "illegal trespassers" from North Korea or any other country. Thus, even though they had been certified as refugees by the UNHCR and carried travel documents issued by the International Committee of the Red Cross stamped with South Korean visas, on December 31 the hapless band of seven was sent back to China. Refugee High Commissioner Ogata's reaction was sharp: "They must be protected against forcible return to North Korea." However, her unusually blunt admonition went unheeded. Chinese Foreign Ministry spokesperson Zhang Qihua insisted that the North Koreans in China were not refugees and could be sent back to their country. The seven were returned on January 12, with all of the adults reportedly being sent to prison.

     In this case, it is especially clear that the Chinese authorities flagrantly violated their obligations under international law. Informed by the UNHCR that the seven had been certified as refugees, the Chinese authorities were explicitly asked not to refoule them, but Beijing chose to defy the United Nations, and the unfortunate people were illegally forced into harm's way.

International Silence

One might have expected some international outcry about all this, but one U.N. official described the response from abroad as "total silence," adding that "This was a direct and clear violation of international law; in most parts of the world, the Americans would be outraged."^[12]

Why has the international community been so silent in response to this refugee problem? Apparently, when it comes to relations with China, the West and Japan have other priorities. But part of the hesitation stems from the fear that intervention would be counterproductive; China might react by closing the border completely.

     South Korea feels that it must tread lightly, given the geopolitical realities. Foreign Minister Soon Young Hong took some heat for his cautious attitude.^[13] Although some NGOs have called attention to the refugees' plight,^[14] The South Korean media have been discouraged from reporting on the problem. In 1999, only 149 North Koreans were accepted as immigrants. True, that was more than double the number of defectors allowed to immigrate to the South during the previous five years. However, the number is small in comparison with how many would like to come. The government is ill-equipped to handle incoming refugees, and there is little support among the South Korean population for a large influx of Northerners. 

     South Korean non-governmental organizations (NGOs) have been outspoken. These include Buddhist and Christian groups, the Citizens' Alliance to Help Political Prisoners in North Korea, and Rescue North Korean People. However, such organizations work under severe constraints. This spring about 20 international charity workers were expelled from China; some others simply disappeared. One who happened to be in Japan was murdered.

     The various international NGOs have done what they can, with Amnesty International making appeals, and the International Committee of the Red Cross issuing travel certificates. The New York-based organization, Human Rights in China, has sent a letter to the Chinese authorities appealing for humane treatment of these refugees and reminding China of its obligations under international law.

     Although such efforts have not had a noticeable effect, the outlook is not wholly bleak. In 1999 North Korea's economy finally began growing again, with the GDP up 6.2 percent. Although that still left the economy well below what it had been in the 1980s, the arrival of foreign aid in the wake of the improved international climate bodes well provided that it is given to those most in need rather than the politically connected, as in the past. But whether the refugees now in China will be eager to return home given the still repressive political system is more doubtful. Many are frantically trying to save enough money to buy a Chinese residency card, which costs well over US $1,000 on the black market.

     Fortunately, some in the Chinese government are becoming concerned about the bad image China is gaining over the refoulement issue. Moderates are urging a rethinking of the whole problem, and arguing the Pyongyang regime should be pressed to institute Chinese-style agricultural reforms. Such voices must be heeded if China is to gain respect as an upholder of international law.