North Korean re-migrants are in a precarious position, sometimes offered asylum, other times deported as illegal immigrants. Until now, it has been taken for granted that because a majority of these individuals leaving South Korea are, or were, carrying South Korean passports, they are in no position to seek refuge elsewhere. Putting precedent aside for a moment, let us reflect on why it might be time to reconsider the rights of North Koreans, under international law, to claim asylum in a third country.
Popular destinations for North Koreans to re-migrate to include Canada, the United Kingdom and Germany. However, because they lack the same kinds of social and economic capital as their Southern brethren, legitimate migration is more difficult. As a result, a majority of North Korean re-migrants must either enter third countries illegally, or are overstaying their visa and risking deportation back to South Korea.
The problem with a North Korean claiming asylum in a third country is tied up with Article 3 of the South Korean Constitution, which claims, “The territory of the Republic of Korea (the ROK) shall consist of the Korean peninsula and its adjacent islands.” Adding to this, the 1997 Act on the Protection and Settlement Support of Residents Escaping from North Korea, Article 1, states,
Protection and support is necessary to help North Korean escapees from the area north of the Military Demarcation Line (hereafter referred to as ‘North Korea’) and desiring protection from the Republic of South Korea as swiftly as possible in order to adapt and stabilize all spheres of their lives…
To sum: North Korea is the ROK’s territory, as are all citizens of North Korea who may be considering, or have already left, South Korean citizens. As they are, therefore, not stateless persons in the eyes of the Constitution, and South Korea is a state enjoying full recognition in the eyes of the international community, they cannot legitimately claim refugee status or asylum in a third country. Allow me to offer a counter argument for this case:
Firstly, how much choice is involved in the process of North Koreans migrating to South Korea is debatable. Upon fleeing North Korea, options are extremely restricted: China does not recognize these individuals as legitimate refugees and continues to repatriate them to an uncertain fate. Further, the waiting time to go to a country other than South Korea, while in a Thai, Burmese or Mongolian detention centre is considerably longer than opting for settlement south of the 38th parallel. While in these detention centres, the first point of contact for most is with civil and state representatives of the ROK. As a result, a majority of North Koreans end up in the ROK as their place of resettlement.
Secondly, the discrimination many North Korean refugees face once they enter South Korea is both institutionalized and ingrained at every level of society, including discrimination in the job market, and social discrimination and marginalization from the political and social rights enjoyed by South Koreans. North Korean migrants are considered politically unreliable, backward and lazy. Discrimination of this kind is so entrenched in South Korean society that Dong-Hoon Seul and John Skrentny refer to South Korean citizenship as a form of ‘hierarchal nationhood’, in which North Koreans are destined to form a sub-class of society, excluded from the ‘imagined community’ of the Republic of South Korea. These two points – a lack of choice in where they are resettled, and an environment which, for many, is unwelcoming and at times hostile to these individuals – form the basis of an argument for legitimizing the status of North Korean re-migrants as asylum seekers in third countries.
Let us now introduce the 1951 Convention Relating to the Status of Refugees – a document with a history intricately tied to the Korean War – and the 1967 Protocol (henceforth known as the ‘CRSR’). According to Article 1 of the CRSR, 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 outside the country of his nationality and… is unable or, owing to such fear, is unwilling to return to it… (bold for emphasis).
States are responsible for protecting the fundamental human rights of their citizens. When they are unable or unwilling to do so – often for political reasons or based on discrimination – individuals may suffer such serious violations of their human rights that they have to leave their homes, their families and their communities to find sanctuary in another country. (bold for emphasis)
Keeping in mind the definition of a refugee as someone who, owing to a fear, for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable to return to the country of their former habitual residence, I argue that North Korean re-migrants to third country signatories of the CRSR, such as Australia and Canada, have a legal right to claim asylum. This right is based on the inability of the ROK to protect the fundamental human rights of North Korean refugees, and a well-founded fear of being persecuted for reasons of nationality and membership of a particular social group. The nationality, in this case, is North Korean; the social group they belong to is ‘North Korean refugee/migrant/defector’ in South Korea.
For countries such as Canada and the U.K., decisions on granting asylum to North Korean re-migrants has, so far, been arbitrary and on a case-to-case basis. These countries are in a difficult position, often unable to independently verify the origins of an asylum seeker. As to the United States, despite President Bush signing the North Korean Human Rights Act on October 2004, the number of North Koreans offered asylum in the U.S. remains negligible. Australia meanwhile, seems to be pursuing a hard-line on this issue, refusing to grant asylum to any North Koreans arriving from South Korea. This hardly helps to make good on an already dubious, and that is putting it lightly, record on matters pertaining to refugees and asylum seekers.
I recommend receiving countries recognize North Korean re-migrants’ legal rights as asylum seekers under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. Legitimating and regulating the claims of these individuals, many of whom face ongoing economic and social discrimination in South Korea due to their social group and country of nationality, is within the boundaries of international law and will have the following effects:
- Weaken the dominance of brokers and people-traffickers in Northeast Asia.
- Enable democratic nations to create a framework for recognition of North Korean refugees and re-migrants; improve the screening process and the infrastructure for settlement.
- Emphasize choice as to where they would prefer to settle. This would in turn relieve some of the burden on the ROK in settling thousands of new arrivals every year.
- Send a clear message to China and North Korea in regards to where the international community stands on the human rights of North Koreans.
Until such a time as the recognition and regulation of North Korean migration and re-migration becomes a reality, the undocumented movement of individuals from South Korea to third countries will continue. The violation of the basic human rights of these persons will also continue unabated. It is required that the argument for the resettlement of North Korean refugees and re-migrants be framed within the boundaries of international law strong enough to support their claims. Utilizing the framework of the UNHCR, in particular the CRSR should make this possible. At the very least, it is a good starting point.