China and North Korea recently increased efforts to find North Koreans seeking refuge in China. According to a recent report by Asahi Shimbun, a Japanese daily newspaper, the two countries’ joint efforts have already resulted in the capture of dozens of North Koreans. Since the mid 1990s, hundreds of thousands of North Koreans have attempted to cross the border into China. This year’s food shortages have resulted in many more desperate North Koreans seeking to enter China in search of food. By repatriating these North Koreans, China may be violating its obligations under the 1951 Convention on the Status of Refugees and its 1967 Protocol, if North Korean defectors can be considered refugees and have individualized concern for their life or freedom.

China considers North Korean defectors to be illegal economic migrants, and as a result, repatriates them in accordance with a bilateral treaty between the two countries. Because leaving North Korea without permission is considered treason, repatriated individuals face imprisonment, torture, and death. China has been accused of being partially responsible for the human rights violations occurring in North Korea as well as violating its obligations as signatory to the 1951 Convention and its 1967 Protocol.

The 1951 Convention on the Status of Refugees and its 1967 Protocol exist to protect the rights of refugees. Article 33 of the Convention establishes the principle of non-refoulement, stating: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” While specifically outlined in the Convention, the principle of non-refoulement is also considered customary international law. This principle prohibits the return of refugees to their home countries if they face danger or persecution there.

Under the 1951 Convention a “refugee” is a person “who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” is unable or unwilling to return to his country. Because many of the North Korean defectors are leaving for economic reasons and not because of persecution related to “race, religion, nationality, membership of a . . . social group or political opinion,” China defines them as illegal economic migrants. The United Nations High Commissioner for Refugees (UNHCR) distinguishes between economic migrants and refugees, noting that individuals leaving their home countries for purely economic reasons are economic migrants. Nevertheless, UNHCR also recognizes that the distinction between economic and political actions within a country is not always clear. For example, if economic sanctions or decisions on the part of a government have political intentions, one might be considered a refugee instead of an economic migrant. China’s blanket classification of all North Koreans as illegal economic migrants means that at least some and possibly all North Koreans who are entitled to refugee status are wrongly repatriated as illegal economic migrants.

Despite these blurred definitions, UNHCR believes that at least some of the North Koreans being repatriated by China definitely meet the criteria for refugee status. Human Rights Watch considers most North Koreans in China to be refugees sur place because even those who initially fled North Korea for economic reasons fear persecution if they are forced to return. UNHCR describes refugees sur place as individuals who have not necessarily left the country illegally or as refugees, but who qualify as refugees at a later date. UNHCR calls for special consideration of situations in which the individual’s actions may have been noticed by the authorities in the person’s country and how those actions may be viewed by those authorities. Under this definition, even if North Koreans were not refugees when they left the country, the fear of persecution upon return to the country qualifies them as refugees.

China’s reluctance to grant asylum to North Koreans is, in part, due to policy concerns. Acceptance of North Koreans could lead to an increase in individuals crossing the border, leaving China with a permanent refugee population. Additionally, action on China’s part could strain the relationship between the two countries, ultimately decreasing the significant influence China presently has over North Korea and destabilizing North Korea generally.

Because China does not grant UNHCR access to the border or to North Koreans already in China, concrete information regarding the reasons for leaving North Korea and the persecution faced upon return is difficult to obtain. The lack of information makes it impossible to determine with certainty the refugee status of most individuals. The recent crackdown on North Koreans by the two countries will only increase the number of individuals whose rights are violated as a result of the repatriation policy. China’s policy concerns, however, are not acceptable reasons to refuse UNHCR access to the border or to fail to comply with obligations under the 1951 Convention and its 1967 Protocol.