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The invisible refugees

February 25, 2003

North Korean asylum seekers in China






The high profile attempts of North Koreans seeking political asylum to rush into diplomatic compounds in China has drawn attention to what is only the tip of the iceberg. As many as half a million North Koreans could be sheltering in China from famine and repression in their homeland. Song Ji Young examines China’s treatment of these refugees in the light of its legal obligations and its relations with North and South Korea, and calls on the international community to take a strong principled stand on this massive humanitarian emergency.










The growing number of North Korean refugees seeking asylum inside foreign embassies in Beijing has focused international attention on the status and treatment of these refugees in China. China maintains its official position, citing the Chinese constitution, that North Korean asylum seekers should not be considered refugees according to international standards because many of them flee to China to seek food and not to acquire political refugee status.



The Chinese government clearly worries that this refugee problem will further strain its already complicated task of maintaining diplomatic relations with the two Koreas. Due to this complex web of relations, China has not established a fixed policy toward North Korean refugees who try to pass through China to seek asylum in South Korea or another country. This article illuminates China’s position toward the North Korean refugees by examining the country’s domestic legal obligations and its diplomatic relationships with the Koreas.





Suffering spills over border



The North Korean food shortage began in the mid-1990s and has continued to grow apace. Several natural disasters that occurred between 1995 and 1996 combined with economic corruption to exacerbate the scale and impact of the famine. Approximately two million North Koreans, or nearly 10 percent of the population, are thought to have died from hunger or famine-related disease since 1994. Some mortality estimates are as high as 3.5 million.



According to a report issued by UNICEF and the World Health Organization in March 2002, 60 percent of North Korean children under age five suffer from malnutrition. This is the worst of 110 developing countries that were surveyed. Many international non-governmental organizations (NGOs) that were providing economic support to North Korea have now chosen to leave the country, citing the government’s failure to allow for a transparent food distribution system and its reluctance to permit NGOs to monitor conditions on the ground or have access to the country’s most vulnerable people.



As a result of the suffering the North Koreans have been enduring, many refugees have fled to China in search of food. No accurate numbers are available for North Korean asylum seekers in China, but estimates range from 10,000 to 500,000, though most NGOs think that there are around 300,000, according to the US Committee for Refugees’ country report on North Korea. As many as 100,000 North Koreans could potentially be displaced inside North Korea and an unknown number may be in Russia and a number of other countries.



If caught by the authorities in China and sent back to North Korea, refugees risk possible imprisonment and torture, forced labor and even execution. Refugees also frequently fall victim to blackmail by men dressed as Chinese police who demand money in return for not turning them in.



Some refugees make money by working on local Chinese farms and, if the money is sufficient, attempt to return to their families and homes in North Korea. Others have Korean-Chinese relatives in China who try to help the refugees by providing them with food that they can then sell on the black markets in North Korea for a profit. Recently, however, Chinese authorities have decided to strengthen border patrols and conduct house-to-house searches to find any illegals. Korean-Chinese communities that have been helping the refugees are now closing their doors, fearing that they themselves will be persecuted for their charity. A few accounts have emerged of sympathetic North Korean border guards who permit unofficial return. But most refugees who try to go back are captured at the border and subjected to brutal treatment.



Another reason why North Koreans seek asylum in China is to escape political repression. Although freedoms of speech, publication and assembly are guaranteed in Article 67 of the North Korean Constitution, in practice people are not permitted to form any kind of independent groups to represent the broad range of North Korean voices and needs. The government prevents North Koreans and foreigners from interacting freely. Furthermore, North Koreans are not permitted to travel abroad, unless they are diplomats or Foreign Affairs Department staff. Thus much of the population is isolated and cut off from information. Political dissidents are sent to labor camps or “Special Detention Centers for Political Prisoners,” where they allegedly endure forced labor and torture.



Despite these conditions, only seven North Korean asylum seekers have been able to acquire refugee status from the United Nations High Commissioner for Refugees (UNHCR). Beijing has never recognized any political refugees from North Korea.





No safe haven



Many North Koreans have been victims of human rights violations in China. For example, young North Korean women who want to go to China to seek a better life have ended up being trafficked to areas in the Chinese countryside to be sold as “wives” or prostitutes. During their journey to China, they have been subjected to rape and torture. They work all day for little or no pay, and their Chinese husbands, who are mostly physically or mentally impaired, beat them. As illegal migrants, they do not have legal status and therefore have no legal protection. Many women are sold several times to different owners and are terribly mistreated.



North Korean children are also victims of egregious human rights violations. Many wander Chinese rural areas for years or run after South Korean tourists in cities begging for money and food. Others find shelter in churches that are managed by South Korean Christian groups. During my travels in Yanbian, a small northern city in China, in 1999, I met four North Korean children in their teens who, due to malnutrition and poor development, appeared to be much younger. One of them, a 19-year-old boy, approached me and told me that he wanted to study mathematics and English somewhere safe and had crossed the border three times. He explained that each time he was caught by North Korean security guards and forcibly detained in a center near the border, where he was severely beaten. The deep, purple scars on his ankles and wrists provided vivid proof of his story.



When North Korean refugees are arrested by the Chinese police, they are kept in detention centers near the border area and handed over to the North Korean authorities. The Chinese authorities do not give the refugees the choice of remaining in China as political refugees or continuing on to a third country, or to South Korea. The refugees are questioned by North Korean authorities and, depending on what they tell the police, are tortured or in some cases even summarily executed as allowed by the government’s interpretation of the North Korean Criminal Code. This lists defection or attempted defection as a serious crime which is punishable by death. According to the South Korean press, North Korean authorities are particularly concerned about defectors who have had any contact with foreigners, particularly South Koreans and Christians, while in China.



The number of North Koreans forcibly repatriated by Chinese border guards has reportedly increased since 1999, although no comprehensive figures are available. In the spring of 2001, China intensified its crackdown on North Korean asylum seekers, returning thousands to the North Korean government. According to NGOs working in the border area, China arrested some 6,000 North Koreans in June and July 2001 alone.





A diplomatic balancing act



China historically maintained a strong relationship with Korea, akin to that of a big brother, but had to form distinct relationships with North Korea and South Korea at the end of World War II. The refugee crisis has had a serious impact on this diplomatic triangle.



In the past, Beijing has been Pyongyang’s best ally. The two governments maintained a close relationship ever since the Korean War, particularly since the two countries signed a bilateral agreement on mutual cooperation on July 11, 1961. The relationship became somewhat strained when China reached a diplomatic accommodation of a sort with South Korea in 1992. Diplomatic exchanges between China and North Korea were reduced after the death of Kim Il-Sung in 1994 and mid-level political exchanges decreased dramatically after the 1997 defection of Hwang Jang Yup, the former North Korean Minister of Foreign Affairs. When the famine first began in the mid 1990s, China turned a blind eye to tens of thousands of North Koreans who sought food and assistance from foreign aid agencies and churches across the border in China.



In an attempt to improve ties, a North Korean delegation headed by Kim Young Nam, permanent commissioner of the National People’s Assembly, visited China in June 1999. After Kim’s visit, the relationship between China and North Korea was revitalized. On October 6, 1999, the 50th anniversary of diplomatic relations between the two nations, the two countries exchanged diplomatic delegations. More visits were to follow: Kim Jong Il, the North Korean leader, visited the Chinese embassy in Pyongyang on March 5, 2000, and visited China from May 28-31, 2000, and in January 2001. Baek Nam Soon, Minister of Foreign Affairs, visited China from March 18-22, 2000, and Jiang Zemin, President of the People’s Republic of China, visited North Korea in September 2001.



Lately, however, China has begun to show signs of impatience with Pyongyang's slow progress in dealing with its famine and the exodus of hungry citizens, as China itself has begun to face mounting international criticism regarding the way it treats the North Koreans who have crossed its northern borders. In deference to its ally’s legal position on the asylum seekers, who are considered to be criminals under the Criminal Code, and their 1961 Agreement, China’s policy is to return the refugees to North Korea. While Article 17 of the North Korean Constitution states that “the citizens of the Democratic People’s Republic of Korea shall have the right to freedom of residence and travel,” Article 117 of its Criminal Code stresses that “crossing the border without permission is a criminal act and those who commit the crime shall be subject to less than three years labor rehabilitation,” while Article 47 of the Criminal Code further states that “those who betray the country and the nation, escape to a third country or an enemy country, or spy shall be subject to more than seven years labor rehabilitation or even execution if the offense is serious.”



According to the “Bilateral Agreement on the Maintenance of National Security and Public Order in the Border Area,” which China and North Korea adopted in 1965, both countries agreed to treat refugees who illegally crossed the borders as criminals and send them back to their original country regardless of their reasons for doing so. Due to recent events and in order to follow North Korean law and please its ally, Beijing has intensified security around diplomatic missions throughout the country, blocked off streets heading to embassies and instructed its armed police force to conduct almost continuous patrols.





Trading with “the enemy”



While Beijing has maintained a long-term relationship with North Korea, albeit a somewhat rigid one in recent years, it established a new trade-oriented relationship with South Korea in 1992, seeking to benefit from the South’s economic potential and technological sophistication. Due to its fast growing economy, South Korea quickly became China’s third largest trading partner after Japan and the United States. This unprecedented new policy of separation of politics and economy implied that China would consider political elements in its diplomatic relationship with North Korea and interest-oriented economic policies with South Korea.



As the economic relationship with South Korea deepened, a political relationship between Beijing and Seoul also began to flourish. China’s official statement on its policies toward South Korea maintained that China would pursue peace and stability, the realization of independent reunification and non-proliferation of nuclear weapons on the Korean peninsula. Both countries have cooperated within the regional system in organizations such as APEC, ASEM (the Asia-Europe forum) and ASEAN Regional Forum, as well as other multilateral institutions concerned with the environment and disarmament. Beijing has shown signs that it supports Seoul’s objections to North Korea’s development of nuclear weapons and its ballistic missile tests. China recognizes that its opening and reform policies can only succeed if regional peace and security are sustained.



Echoing China’s problems with North Korea, the relationship between China and South Korea is being tested by the increasing number of North Koreans attempting to seek asylum in South Korean missions in China. According to South Korean human rights activists, domestic pressure has been building inside South Korea for a clearer policy toward the North Koreans in light of the increased number of break-ins. In order to avoid upsetting Beijing, South Korean embassies in China had been turning away the refugees but, according to the testimony of North Korean refugees in the United States and South Korea, gave them money and offered to help them if they made it to a third country, such as Mongolia or Vietnam.



Upon learning of this policy, China demanded that diplomatic offices not be used as a channel for illegal immigration. South Korea responded by asserting that it fully understood and accepted China’s demands. But following a high profile incident in May 2002 in which North Koreans attempting to enter the South Korean Embassy in Beijing were manhandled away and a fight broke out between embassy staff and Chinese security officers, the South Korean government called for China to issue an official apology for beating a South Korean diplomat, to return the North Korean asylum seekers who had been arrested in the incident and guarantee that such incidents would not occur again in future.



The contradiction between the official position and this incident is, however, more apparent than real. A South Korean official said that while Beijing and Seoul had agreed that foreign embassies should not be used as a channel for illegal immigration, they had also agreed that the current North Korean asylum seekers shall not be sent back to North Korea, and thus North Korean refugees are not blocked from using foreign missions as a conduit to the South. Indeed, they have continued to do so, with the most recent break-in being a group that entered the German school in Beijing. According to a June 2002 Korea Times article, the official also said that according to the agreement, in the future asylum seekers will be treated in accordance with China's domestic and international laws as well as humanitarian principles.



This agreement is considered to be a mutually beneficial way for each party to sidestep the issue, since it allowed Seoul to take the necessary steps to ease domestic pressure by accepting refugees who showed up on its doorstep while at the same time allowing Beijing to alleviate mounting international pressure.





Legal status of refugees



The Chinese government denies violating the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention), which Beijing ratified in 1982, and the 1963 Vienna Convention on Consular Relations (Vienna Convention), international laws which guarantee the rights of refugees and the inviolability of consular premises. International human rights organizations and activists have often argued that North Koreans who rush into foreign embassies should be accorded refugee status under the Refugee Convention and its Protocol. However, Beijing denies North Koreans international refugee status on the grounds that Article 1.A (2) of the Convention (as amended by the Protocol of 1967) defines a refugee as someone who has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” In international law, there is no such thing as “economic refugee” status. Article 32 of China’s Constitution only provides for granting asylum for political reasons, echoing the Refugee Convention.



It is hardly surprising that Beijing refuses to grant political asylum to a group of refugees who are fleeing a country with which it shares the same socialist political values. If Beijing accepted political refugees from North Korea, it would not only ruin its relationship with its neighbor, but would also make a mockery of its own commitment to a socialist system. China has repeatedly turned down offers of assistance from the UNHCR claiming, “These people are not refugees.” A Foreign Ministry spokesman rejected the idea of refugee camps, which was proposed by the South Korean government and some human rights activists. China maintains they are economic migrants and must return to North Korea.



The human rights community has also accused China of breaching the Vienna Convention when security forces forcibly removed refugees from the South Korean or Japanese consulates. Such acts are illegal according to Article 31, Chapter II of the Vienna Convention which states, “The authorities of the receiving State shall not enter that part of the consular premises.” However, Foreign Ministry spokesman Liu Jianchao claims the men who entered the South Korean Consulate and removed the asylum seekers were private security guards and not police officers, even though TV footage showed that they were wearing police and army uniforms. He accused South Korean diplomats, who attempted to block Chinese guards from taking a North Korean man, of ignoring Chinese orders and breaking Chinese domestic law. Liu further commented, “Their behavior was extremely incompatible with their diplomatic status and violated international law.” He was referring to Article 31, which states, “[T]he receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance to the peace of the consular post or impairment of its dignity.” China’s reaction was viewed as a way of removing the North Koreans as quickly as possible while avoiding taking any official position on the matter.



The current rash of attempts by asylum seekers to make their way into diplomatic buildings in Beijing has attracted international media attention, and China has begun to feel the pressure from the international human rights community to treat the refugees according to human rights law. Despite its bilateral agreement on illegal migrants, Beijing allowed 81 North Koreans to leave for third countries from March through July of this year. Beijing officials have said that humanitarian considerations were the deciding factor in allowing North Koreans safe passage. Allowing refugees to escape to South Korea by way of the Philippines or Thailand is also interpreted as a face-saving move for China, which does not wish to hand over the refugees directly to Seoul for fear of offending political allies in Pyongyang. Privately, however, officials fear such leniency may prompt a wave of mass defections.



However, China now appears to be toughening its policy on these refugees. On May 28, for the first time the Chinese authorities demanded that South Korea should turn over four asylum seekers who rushed into its Beijing consulate. On May 30, Chinese Foreign Ministry spokesman Kong Quan asked all foreign embassies to turn over intruders to the police stating, “We require the South Korean Embassy to hand these people over to the Chinese side to be dealt with. We believe that according to international and Chinese laws, foreign embassies have no right to grant asylum to citizens of a third country.” Chinese security forces have reportedly tightened security around foreign embassies, doubled the number of guards and provided them with wooden clubs. In addition, security agents have been combing northeastern towns bordering North Korea in order to round up escapees. While Beijing struggles to balance international pressure with preserving its long-term relationship with North Korea, thousands of refugees in China fear arrest and repatriation to North Korea.





What’s to be done?



Fleeing to China is considered to be the only way hungry and repressed North Koreans can survive. While the severe famine and economic crisis is the precipitating factor for the flight of many, the situation of most is not purely that of economic migrants, given the political situation in North Korea and the reality people face if they are sent back there having fled. Beijing denies that the North Koreans are political refugees, but Amnesty International has insisted that North Korean asylum seekers are not economic migrants but political refugees since they face imprisonment and persecution if they return to North Korea. But China will not listen.



Pyongyang is primarily responsible for the protection of the human rights of its people, who are suffering from food and energy shortages, as well as political persecution. However, Beijing is legally obligated to protect the human rights of the refugees who seek asylum in China. UN agencies including the UNHCR, the Office of the High Commissioner for Human Rights, the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of the Child, should take urgent action to protect the rights of North Koreans and to promote peace and democracy in Northeast Asia as a result. Seoul’s first priority should be to resolve the question of whether it defines North Koreans as being citizens who are automatically eligible for consular protection, and then determine its next steps accordingly.



The plight of the North Korean refugees has been neglected for too long, even though the situation is very urgent, and involves hundreds of thousands of human lives. Beijing must work out a strong policy on the treatment of refugees. The only force powerful enough to move Beijing is mounting pressure from the international human rights community.



The problem does not lie in whether North Korean asylum seekers should be considered as political refugees or not. The main issue at hand is that their rights must be protected and that they should be treated in a manner consistent with international human rights law. The international human rights community should demand that Beijing protect the rights of North Korean political refugees and guarantee their transfer to a place of safety. Furthermore, upon repatriation to North Korea, people must not be tortured or executed. Of course, the most obvious but difficult solution is to enable North Korea to have the ability to feed its people, protect their human rights and promote democracy and freedom. t





Song Ji Young is currently a research assistant at the Sejong Institute in Sungnam, Korea. She received an LLM in Human Rights from the University of Hong Kong in 2002, and has long been involved in research and advocacy on human rights in North Korea.

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