Protect the unprotected: the escaping North Korean issue and China’s dual dilemma of theoretical enlightenment and operational trial

Abstract

Escalating tensions in the Peninsula may force voluminous North Koreans to leave the country, although relevant information is limited. China has refused to grant North Korean escapees the refugee status, because the main reason of their departure, economic hardship, is not prescribed in conventional refugee definition. The Bangkok Principles provide principal guidance to Asia’s refugee issues, whereto its non-legally binding framework helps facilitate the fledgling regional efforts and still-developing states’ wills. Yet, China’s insistence in distinguishing economic hardship from political causes reifies its overt cautions to the rapidly evolving refugee causes, and an outright rejection to the indiscriminate humanitarian nature of refugee protection. Another reason is China’s ‘Asian Values’ approach to human right, seeing various aspects of human right as separable. To grant refugees only partial rights would appear theoretically unsound, and blatantly contradicting its integral human-right essence. Realistically, China has only limited refugee reception experiences. Its relevant domestic mechanism is under-developed, whereby positive public opinions cannot be effectively remoulded. China also worries about the unwanted international attentions and entailed geopolitical implications, which imply denunciation of Pyongyang’s governance performance by formally identifying these escapees, refugees. Current dramatic changes in inter-Korean relations urge China to take swift, expedient, and substantive actions.

Keywords:

• Refugee
• 1951 Refugee Convention
• Bangkok principles
• politicization
• Asian values
• geopolitics

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 King, S. (2017, April 16). A Timeline of North Korea’s Missile Launches and Nuclear Detonations. Bloomberg. Retrieved from https://www.bloomberg.com/news/articles/2017-04-16/north-korea-missile-launches-nuclear-detonations-timeline; Choe, S.-H. & Perlez, J. (2016, September 8). North Korea Tests a Mightier Nuclear Bomb, Raising Tension. The New York Times. Retrieved from https://www.nytimes.com/2016/09/09/world/asia/north-korea-nuclear-test.html.

2 China: Don’t Force 8 Refugees Back to North Korea. (2017, April 22). Human Rights Watch. Retrieved from https://www.hrw.org/news/2017/04/23/china-dont-force-8-refugees-back-north-korea.

3 Relatively few reports are about the situation in the Sino-Korean borderland. Peace Along the Sino-Korean Border Despite Missile Threats from the North. (2017, April 16). Livemint News. Retrieved from https://www.livemint.com/Politics/RUMhZEvxRMrqUxOAnxQm8H/Peace-along-the-SinoKorean-border-despite-missile-threats-f.html; Kurby, W. (2017, August 1). North Korea Latest: Defectors Flee North Korea in Droves as Threat of US War Intensifies. Sunday Express. Retrieved from https://www.express.co.uk/news/world/835620/north-korea-defectors-flee-kim-jong-un-regime-thailand-via-china-war-tensions-rise; Kurby, W. (2016, December 7). North Korean Defector Numbers Rise by 17 PER CENT as People Desperately Flee Brutal Regime. Sunday Express. Retrieved from https://www.express.co.uk/news/world/740666/North-Korea-defectors-rise-Kim-Jong-un-South-Korea-Pyongyang.

4 Human Rights Watch, North Korea: Events of 2016. Retrieved from https://www.hrw.org/world-report/2017/country-chapters/north-korea.

5 Refugee Convention 1951, Article 1(A)(2), stating ‘the term “refugee” shall apply to any 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 who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’.

6 The 1951 Refugee Convention is applauded to have significance in the legal, political and ethical dimensions. Regarding the definition of refugee, it is claimed that the 1951 Refugee Convention provides the basic standards on which principled action can be based. In this sense, the standard set in the 1951 Refugee Convention is deemed as relevant in the contemporary context as they were in 1951, by incorporating, either directly or as an inevitable interpretation, the fundamental concepts of the refugee protection regime.

7 BBC. (2018, January 16). Myanmar Rohingya: What you need to know about the crisis. Retrieved from http://www.bbc.com/news/world-asia-41566561.

8 Up to 2007, China is ranked the seventh largest refugee receiving country in the world, and first in East and Southeast Asia, hosting an amount of approximately 3% of the global population. These numbers are provided on the UNHCR website for statistics dated at the end of 2007.

9 The risk cannot be easily dismissed either. The Law of Sea Convention has left certain issues in deliberate vagueness. This is so because the consensus was reached among a plenty of countries with diversified national interests and calculations. One most notable issue is the island regime prescribed from Article 121–123. Definitions of islands are crafted with vague words, and distinctions between an island and a rock, unclear. Other issues that require further clarification and amendment, if necessary, are like historical rights and the effect of declarations made under Article 298.

10 The totalitarian dictatorship of Kim Il-sung, which later developed to a unique monolithic ruling system combining the Great Leader (Kim Il-sung), the Korea Workers’ Party, and the mass, into one, was the first primacy in North Korean political histories. Juche was the second pillar of the party’s guidance and state philosophy. Juche was seen a creative application of Marxist-Leninist principles.

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Hui-Yi Katherine Tseng

Hui-Yi Katherine Tseng is a research associate in East Asian Institute, National University of Singapore. Trained as an international law scholar with trade dispute settlement experiences (a member of WTO dispute settlement team of Taiwan, 2003–2007), her research interests expand from international trade dispute resolutions to legal-political developments in East and Southeast Asia. Currently, she is studying regional legal and political issues by using an inter-disciplinary approach, touching upon international law, geo-politics, history, international relations, political theory, and sociology. Tseng hopes that her research and works can help solicit reconsiderations of the legal-political order, established and deemed-granted, in post-WWII era in this region, and help identify new directions and challenges amid the increasing uncertainties of this new era. This article is a part of Tseng’s efforts in her recent research of Korean Peninsula tensions, North Korean identity and international law.