Crafting a multilateral solution for North Korean refugee settlement: what American policymakers can learn from the Indochinese refugee crisis.

• Author: Ji, Yuan

1. INTRODUCTION II. Lessons from the Indochinese Refugee Crisis: US-China Leadership in Forming a Multilateral Resettlement Solution for North Korean Refugees 1. Background of the Indochinese Refugee Crisis 2. Past US-China Leadership in Multilateral Collaborations Regarding North Korea III. China's Leadership Role in the North Korean Refugee Problem: International Obligations, Current Policy, and Negotiating Power 1. International Obligations Towards Refugees 2. National Interests That Shape China's Current Policy of Denying Refugee Status to North Koreans 3. China's Negotiating Power over North Korea 4. China-South Korea Partnership IV. Policy Proposals for A Multilateral Solution 1. Shortcomings of the 2004 North Korean Human Rights Act 2. Imperfections of Current International Refugee Law 3. Addressing China's Burdens of Providing Temporary First Asylum V. Challenges in Implementation VI. Conclusion I. Introduction

   A pressing humanitarian crisis is ongoing but lacks an adequate solution. Food shortages and human rights violations have driven many North Korean asylum seekers to cross the border into China. Once there, they are given no legal protection, categorically defined as illegal economic migrants, and subject to forced repatriation. The severity of the food shortage has been compared to that of the North Korean famine in the mid-1990s, which killed between one and three million people. (1) As of 2007, it is estimated that 300.000 North Korean migrants reside in China, (2) and those forcibly returned to North Korea "routinely face prison, torture, and sometimes execution." (3) The majority of North Korean refugees (4) in China do not wish to remain there permanently. The Peterson Institute for International Economics and the United States Committee for Human Rights in North Korea conducted a survey of these refugees in 2008. Out of a sample of 1247, the majority (64.3%) wished to resettle in South Korea and 19.1% wished to resettle in the United States. (5)

   The United States is home to the largest Korean population outside of Northeast Asia and many in the Korean-American community have family ties to North Korea. (6) In 2004, the US Congress passed the North Korean Human Rights Act (NKHRA). (7) The enactment of the NKHRA was motivated by a concern both for human rights abuses that are pervasive in North Korea and for human rights issues facing North Korean refugees when they arrive in the United States. (8) The NKHRA grants refugee status to all eligible North Koreans (9) and, for fiscal years 2005-2008, authorized an annual budget of up to $20 million for the assistance of North Korean refugees. (10)

   However, implementation of the NKHRA has been ineffective and slow in the resettlement of North Korean refugees. In 2006, a bipartisan group of nine members of Congress expressed their concern over this issue as follows: "despite the fact that the [NKHRA] calls for the Department of State to facilitate the submission of North Korean refugee applications, not one North Korean has been offered asylum or refugee status in the 16 months since the unanimous passage of the legislation." (11) Indeed, the first North Korean refugees did not arrive in the United States until May 2006, nineteen months after the passage of the NKHRA, and as of 2009, the asylum claims of only 81 North Koreans have been recognized by the American government. (12)

   In 2008, Congress passed the North Korean Reauthorization Act (2008 Reauthorization Act) to renew the NKHRA for the years 2009-2012, on the basis of its "longstanding commitment ... to refugee and human rights advocacy." (13) The renewal furthered Congress' intentions for the United States to "pursue an international agreement to adopt an effective 'first asylum' policy, modeled on the first asylum policy for Vietnamese refugees, that guarantees safe haven and assistance to North Korean refugees." (14)

   "Vietnamese refugees" refers to the outpour of refugees, beginning in 1975, from Vietnam, Laos, and Cambodia. These refugees sought temporary first asylum--primarily in Thailand but also in Malaysia, Singapore, Indonesia, the Philippines, and Hong Kong--before moving to the United States and other countries for permanent resettlement. This mass exodus, known as the Indochinese refugee crisis, followed the end of the Vietnam War and the Communist takeovers in Vietnam, Laos, and Cambodia during the 1970s. Close to two million people fled their homelands in Southeast Asia for political or economic reasons. The resettlement of Indochinese refugees during this humanitarian crisis was achieved through international burden-sharing, with Thailand and the United States taking respective leadership in providing first asylum and permanent resettlement.

   One important lesson from the Indochinese episode is that a multilateral solution to a humanitarian problem does not require all parties to share the same motivations, and a purely humanitarian rhetoric that fails to consider the national interests of the parties involved is not likely to effect actual change. Thailand served as the primary first asylum country in the Indochinese crisis, and China is the natural candidate to assume similar leadership in the current North Korean crisis. An evaluation of Thailand's interests and motivations with respect to the Indochinese crisis reveals insights on how American policymakers can more effectively persuade China to take leadership in providing first asylum to North Korean refugees. Of course, there are limits to this analogy, and these limits will be canvassed in Part IV.

   To the extent that the analogy between the two refugee crises is appropriate, this article will argue that even if motivated by humanitarian concerns, American policymakers should nevertheless take a pragmatic approach to the negotiation and implementation of a multilateral solution for the North Korean refugee crisis. Specifically, this article proposes policies for the current US administration by focusing on two key and related themes: i) as demonstrated by the Indochinese refugee crisis, successful negotiation and implementation of a multilateral solution requires a pragmatic awareness of the partner states' national interests; and ii) successful resettlement of North Korean refugees must engage China, a key partner, by understanding its interests and burdens arising from the provision of first asylum. American diplomatic dialogue with China might make more progress on the issue if it focuses less on human rights and more on, for example, the financial benefits that could potentially result if China were willing to recognize refugee status for qualifying North Korean refugees. Part of the NKHRA's annual budget should also be pledged to the development of an effective domestic screening program, which would assure China that the rate of permanent resettlement in the United States would not lag behind China's admission of North Koreans.

   As demonstrated by its role in the six-party talks over nuclear nonproliferation, China is a crucial player in any multilateral collaboration regarding North Korea. In the refugee context, China's importance derives from various factors including its negotiating power over North Korea, its partnership with South Korea, and its status as the primary first stop for North Korean refugees. The NKHRA, while well-intended, has made little progress in resettling North Korean refugees because, among other shortcomings, it has failed to garner China's partnership. While South Korea is bound to play an important role in any multilateral resettlement of North Korean refugees and should not be sidelined, this article will primarily focus on the potential progress that bilateral US-China leadership can make in resettlement efforts.

   Part II will reflect on the lessons from Indochinese refugee resettlement, during which the United States and Thailand took respective leadership roles in providing permanent resettlement and first asylum. Thailand, like China, viewed refugees as illegal economic migrants and for the most part did not base its asylum policy on humanitarian concerns. A primary lesson from the Indochinese crisis is that a successful multilateral solution does not require the states that assume leadership roles to have completely identical motives. Rather, it is sufficient for them to have an overlap of interests, which is certainly conceivable in the North Korean scenario. Such an overlap of interests is illustrated, for example, by the modern US-China cooperation in pressuring North Korea to abandon its nuclear program.

   Part III will explain why it is crucial for the NKHRA or any future American foreign policy to engage China's partnership in the resettlement of North Korean refugees. It will examine the national interests that shape China's current policy of denying refugee status to all North Korean defectors. This will reveal that those crafting American foreign policy must address China's national interests first if they wish to be effective in seeking Chinese collaboration.

   Part IV will point out the NKHRA's shortcomings as well as the imperfections in current international law's protection of economic refugees. It proposes that effective US-China leadership in North Korean refugee resettlement should work with rather than in criticism of the Chinese legal system. This approach is adopted from the lessons offered by the Thai experience during the Indochinese refugee crisis. Part V will address the challenges in implementing these policy proposals and the difference in circumstances between the Indochinese episode and the North Korean situation at present.

2. Lessons from the Indochinese Refugee Crisis: US-China Leadership in Forming a Multilateral Resettlement Solution for North Korean Refugees

   The 1990s saw a global trend of increasingly restrictive asylum policies and a general failure to comply with international treaty obligations toward refugees. (15) International...