North Korean Escapees in China: Granting Prima Facie Refugee Status Based on a Group Determination

• Author: Melissa M. Kim
• Position: B.A.(Hon. Toronto), J.D.(Toronto)
• Pages: 423-449

Melissa M. Kim. B.A.(Hon. Toronto), J.D.(Toronto). The author wishes to thank Professor A. Macklin and Professor Y. Dawood for their encouragement and support at the time this manuscript was written. The author may be contacted at: melissa.kim@utoronto.ca / Address: 50 Commons Drive, Toronto, Ontario, M1T 1E4 Canada.

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I Introduction

For the past twenty years, the Office of the United Nations High Commissioner for Refugees¹ (“UNHCR”) has faced a complex situation of North Koreans² moving illegally across the North Korean border into Chinese territory. More recently, this flow of North Korean escapees³ has intensified, resulting in a mass influx of tens of thousands of North Koreans crossing into northeastern China. Characterized as the “North Korean refugee crisis” by the media and international organizations, numerous articles and reports have documented the plight of North Korean escapees in China, detailing the impoverished lives of North Koreans who live in constant fear of being forcibly repatriated back to North Korea, where they will face imprisonment, labour camp detention, or execution upon return.

Although the mass influx situation is generally understood to be a refugee crisis, North Korean escapees have not officially been granted international refugee status by China, nor are they recognized as such by the UNHCR. The main purpose of this article is to evaluate whether North Korean escapees should be granted refugee status, and if so, to determine the most effective approach under international law to award status recognition to North Korean escapees. The recognition or non-recognition of refugee status is central to any discussion concerning the afflictions faced by North Korean escapees since international legal status delineates the rights and protections that the Chinese government, the UNHCR, and the international community must provide toPage 425 North Koreans in China.

Within the scarcity of academic scholarship on the issue, authors have advanced the argument that North Korean escapees should be granted refugee⁴ status under the 1951 Convention Relating to the Status of Refugees (“the Convention”) and the 1967 Protocol Relating to the Status of Refugees (“the Protocol”).⁵ Traditionally, Article 1A(2) of the Convention was interpreted as an ‘individualized’definition (i.e. a refugee is a person who meets the definitional characteristics laid out in Article 1A(2)).⁶ Not surprisingly, academics have come to the conclusion that North Korean escapees are refugees under the Convention by arguing that North Korean escapees meet the individualized definition in Article 1A(2) of the Convention.⁷

Whilst the author is in full agreement with the ultimate conclusion that North Korean escapees should be considered Convention refugees and receive the rights and protections guaranteed by the Convention, the author critiques the locating of refugee status of North Korean escapees within the traditional, individualized interpretation of Article 1A(2). Instead, this article offers an alternative argument: North Korean escapees should be granted prima facie refugee status based on a group interpretation of the Convention and Protocol definitions.⁸

This article is premised on the view that the protection of refugees is mainly a matter of international law.⁹ In other words, the protection needs of refugees are best addressed by legal frameworks, in which commitments, rights, and obligations are delineated.¹⁰ Consequently, the focus of this article will be the 1951 Convention and 1967 Protocol, given their primacy as the key international instruments which prescribePage 426 the ‘refugee’definition and countries’obligations towards persons who meet that definition.¹¹ Hence, the discussion of the international legal status of North Korean escapees will be provided within this context.

This paper is composed of eight parts. Chapter II will provide the necessary context to the analysis by first detailing the conditions in North Korea which have prompted North Koreans to flee, followed by an account of the Chinese, South Korean, and UNHCR stance on the issue of North Korean escapees in China. Chapter III will briefly review why a comprehensive discussion of the situation of North Korean escapees cannot end with the principle of non-refoulement. Chapter IV will introduce the international legal regime for the protection of refugees, focusing on the different interpretations and applications (e.g. individual application v. group application) of Article 1A(2) of the Convention. Chapter V will discuss the limitations of applying the individualized interpretation of the Convention definition to the situation of North Korean escapees. Chapter VI will advance the main thesis of this article: North Korean escapees should be granted refugee status under a group interpretation of the Convention definition. Chapter VII will discuss the connection between prima facie refugee status and the group determination approach under Article 1A(2) and will demonstrate that North Korean escapees should be awarded the full spectrum of protections under the Convention as prima facie refugees. Chapter VIII will respond to the ‘dual nationality’barrier argument and demonstrate that the availability of both North Korean and South Korean citizenship to North Korean escapees should not act as a technical bar to refugee status. This article will conclude with a brief discussion of the importance of granting international legal refugee status to North Korean escapees.

II Background: The North Korean Crisis

Various NGOs have documented that the flow of North Koreans into China is a mass influx situation.¹² At the end of 2007, the US State Department estimated that 30,000 ‐Page 427 50,000 North Korean escapees currently live in China.¹³ Some NGOs have estimated that the number is closer to 400,000.¹⁴ Reliable numbers, however, are difficult to ascertain because the UNHCR has been prevented from conducting a systematic survey from North Korea and China along the national border of both sides.¹⁵

A The Genesis of the Problem: Reasons Underlying Flight

With the collapse of the Soviet Union in 1991, North Korea lost strategic ties upon which the country’s economy was heavily dependent. North Korea’s economy was further exacerbated by a decrease in trade levels with China following China’s strengthened ties with South Korea and its ascension onto the international scene. In addition, the heavy floods in the mid-1990s and the droughts in 2000 and 2001 led to a complete collapse of North Korea’s agricultural industry.¹⁶ As a result, North Korea experienced a complete breakdown in the nation’s economy and centralized distribution mechanisms. Beginning in 1996, the North Korean population suffered through a serious famine, with food shortages continuing to this day. Reportedly, 2 to 3.5 million North Koreans have died throughout this period.¹⁷ Beginning in the late 1990s, large numbers of North Koreans, in search of food and work, started wading across the shallow Yalu River into China. Directly across the Yalu is the sparsely populated Changbaishan Region of Jilin Province, home to China’s ethnic Korean minority.¹⁸

As the famine, economic stagnation, and repression became worse in North Korea, the migration flow not only increased in size, but also changed in purpose. While the earlier escapees originally intended to live in Jilin, the later escapees preferred South Korea as their ultimate destination.¹⁹ Due to the dangers with crossing the heavily fortified demilitarized zone between North and South Korea, the preferred route to getting to South Korea is to pass through China.²⁰

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B China

In the early years, the border around the Yalu river was not heavily guarded, making it easy for North Koreans to journey into China. However, as the famine continued and the number of North Koreans crossing the border increased, China began to fortify its border.²¹ Demands from North Korea for repatriation of illegal border crossers, combined with Chinese concerns that massive numbers of migrants in an already poor region with high unemployment could be destabilizing, led to a concerted crackdown on unauthorized North Korean border crossing.²²

Although China is a party to the Convention²³ and the Protocol,²⁴ China has continued to violate its international obligations. In addition to tightening its border controls, China has forcibly repatriated North Korean escapees who had already arrived onto Chinese territory, even though Chinese officials were aware that returnees would be regularly beaten or sentenced to long periods of hard labour in prison camps in North Korea.²⁵ Since 1998, China is estimated to have repatriated two thousand North Koreans each month.²⁶ Moreover, China has refused to allow the UNHCR to screen, monitor, or investigate North Koreans in China. It even prevents the...