NORTH KOREA

4th International Conference on North Korean Human Rights and Refugees

Prague, 2-4 March 2003

Statement by Human Rights Without Frontiers at the session on "Formulating schemes to pressure China"

12 March 2003

Formulating schemes to pressure China

HRWF Int. (04.03.2003) - Website: www.hrwf.net - Email: info@hrwf.net - The period between the Third Conference organised by the Citizens Alliance in Tokyo and the present conference was a time of hope as much as frustration for all of us dealing with the issues of North Korean human rights and refugees.

There was hope because for the first time in several years the plight of North Korean refugees was brought widely to the attention of the international community. The desperate escape of North Korean asylum-seekers into the safety of foreign diplomatic missions in Beijing and elsewhere in China left an indelible picture in the mind of the international audience.

However, despite the safe passage of those asylum-seekers who were able to make their way into the missions of a third country, this period has left usthe numerous NGOs and humanitarian organisationswith a plethora of unanswered questions:

1. Who is to guarantee the physical safety and security of the thousands of North Koreans living in constant fear of being arrested by Chinese authorities and forcibly repatriated;
2. Who is to intervene when North Koreans are denied access to international monitoring procedures of their needs and the way they are treated by the Chinese authorities;
3. Who is to ensure access of North Korean asylum-seekers to refugee status determination procedures?

What we have witnessed during this period is a reality with two faces. Beijing allowed the North Korean asylum-seekers, those who were in the spotlight and attracted international attention, to leave for third countries. Humanitarian considerations were the deciding factor in allowing North Koreans safe passage and provided the Chinese authorities with a face-saving formulation of their decision. However, their applications for refugees could never reach the UNHCR and their status has never been discussed.

The second face of the reality confronting the refugees in China is more grim. The Chinese authorities intensified their efforts to crack down on the North Koreans. Thousands of North Koreans have been arrested and forcibly repatriated. In December 2002, the Chinese authorities launched a "100-Day campaign" of forced repatriation. Since then, an estimated 3200 have been refouled. 1300 others are waiting for their repatriation in the detention centres of Tumen and Longjing.

This systematic and organised campaign of eliminating North Korean asylum-seekers takes place in silence. There is an urgent need to halt these activities.

1. I.The international community should take a strong and principled stand on the issue of North Korean asylum-seekers

By taking such a stand on the issue of the asylum-seekers, the international community will demonstrate that it cannot and will not succumb to the position of the Chinese authorities. The definition of a "refugee" is universal and has been agreed upon by the UN member states.

The 1951 Convention Relating to the Status of Refugees defines a refugee to be someone with "well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group or political opinions". China denies North Koreans international refugee status on the grounds that they are "economic migrants" and are therefore not threatened with persecution in their country.

Can the international community accept such a formulation of the issue?

In a society governed by rules of political oppression, as is the case of North Korea, any defector can potentially be qualified as a refugee. Although Article 51 of the North Korean Constitution states that "citizens enjoy equal rights in political, economic, cultural and all other spheres of State and public activities", the people are threatened with inequality because the population is divided into various social classes and everyones social status, privileges, food rationing, travel opportunities, occupation assignment, use of health and education facilities, are differentiated according to the class to which he or she belongs. There are three fundamental classesthe core of 28%, the hostile class of 27% and the rest of the population being the wavering class. The classification is made on the basis of information collected through many surveillance agencies. In addition, the classification may be changed from one to another, thus providing the North Korean leadership with stronger control over the entire society.

A refugee is further defined as someone who is "unable to avail himself of the protection of that country" or "outside of the country of his former habitual residence and unable or unwilling to return to it". On this point, it is legitimate to argue that North Koreans have no protection on their return back to their country. Article 47 of the Criminal Code of North Korea is quite explicit: "a citizen of the Republic who defects to a foreign country or to the enemy in betrayal of the country and the people... shall be committed to a reform institution for not less than seven years. In cases where the person commits an extremely grave offence, he or she will be given the death penalty".

North Koreans defect to China in pursuit of freedom and in defiance of the political authorities of North Korea. It is true that they defect to China for food, as well. Food in North Korea, however, is not only a means of survival. Food is a strong weapon of political repression. Qualifying North Korean defectors as "economic migrants" means to discard the whole political reality in North Korea, which should not be admitted by any means.

1. II.China should be held responsible for violating its international commitments

It is incumbent on the international community to state clearly that Chinas treatment of North Koreans in China is a defiance of international agreements and represents a flagrant violation of its obligations as a UN member state.

China acceded to both the 1951 Convention on the Status of Refugees and the 1967 Protocol on September 24, 1982. Twenty years later, Chinese authorities violate the non-expulsion (refoulement) principle under Article 33 of the Convention and Article 1, Paragraph 1 of the 1967 Protocol when they expel or return the North Korean defectors to their country where their lives and freedom would be threatened.

The Chinese government denies violating the Convention. However, China neither gives the asylum-seekers a refugee status nor allows the UNHCR to examine their status. Instead, China abides by the provisions of a secret agreement the North Korean Ministry of State Security and the Chinese Ministry of Public Security had signed in 1986. Both sides had agreed to cooperate against illegal border crossing and to hand over criminals, including "anti-revolutionary elements", escaping across each others borders. This bilateral arrangement, therefore, abrogates international agreements.

1. III.UNHCR should discontinue its "wait and see" policy and fulfil its protection mandate

On this point, many NGOs and individuals share great deal of frustration. It is to state that the UNHCR fails to fulfil its mandate, which is to assist host governments to safeguard the basic rights of refugees and take necessary measures to guarantee protection throughout the displacement cycle, from preventing refoulement and securing asylum to the realisation of durable solutions. The word "protection" is the underlying motto of the UNHCR mandate, and yet North Korean asylum-seekers have no protection whatsoever. Even worse, the UNHCR has no access to North Koreans in China and, therefore, has no way of studying their situation or establishing status determination procedures. This stalemate has dragged on for several years already.

In December 1999, the UNHCR recognised seven North Koreans (aged between 13 and 30) as refugees under the 1951 Convention. Although the UNHCR informed the Chinese and Russian governments about its decision, Russia returned them to China on 31 December 1999, and China forcibly returned them to North Korea on 12 January 2000.

In June 2001, a family of seven North Koreans entered the Beijing office of the UNHCR asking for a political refugee status. After negotiations with the UNHCR, the Chinese government agreed to let them leave the country on "humanitarian" grounds.

To our knowledge, these are the only two cases when the UNHCR has been somehow involved in discussions on the status of North Korean asylum-seekers compared to the thousands North Koreans repatriated to their country with any protection of their lives and freedom.

UNHCR should be in a position to invoke all mechanisms at its disposal that will allow it to obtain direct and unhindered assistance to North Koreans and to ensure their physical safety and security. UNHCR should immediately conduct an investigation of the conditions of North Koreans in China and should establish status determination procedure, under which they will be given legal refugee status in accordance with international law.