Refugees’ lives may depend on interpretations of Sino-Korean consular agreement

Human rights advocates have long contended that China’s repatriation of North Korean refugees violates international law, including obligations China undertook voluntarily in the 1951 Refugee Convention and its 1969 Protocol. A U.N. Commission of Inquiry recently added its weight to that contention and strongly criticized China’s disregard of that Convention.

[Suzanne Scholte and Rep. Park Sun-young protest
outside the Chinese Embassy in Seoul, 2012]

Some rights advocates have hoped that the COI’s report would force China to alter its refugee-deportation policy, for reasons best explained by Roberta Cohen, Co-Chair of the Committee for Human Rights in North Korea, in an interview with NK News, and by Stephan Haggard here.

These hopes are about to be tested. This week, following Xi Jinping’s visit to Seoul, The Daily NK reports that eleven North Korean refugees, arrested by China on June 19th, are in grave danger of repatriation to the North. The arrests were first reported on July 3rd Korea time, as Xi arrived in Seoul. More here, via Reuters.

If only Park Geun-Hye had seen fit to raise the issue of repatriations in her meetings with Xi. If only Xi’s desire to improve relations with Seoul had potential to benefit the 23 million Koreans unfortunate enough to reside North of the DMZ. But in one of the lesser-reported outcomes of the summit, the two leaders actually signed an agreement on consular protections for each others’ citizens:

The agreement mainly calls for the two countries to notify each other within four days when a national from the other country is arrested or detained. Meeting with consular officials will be also allowed within four days, according to the sources. [Yonhap]

But what does the agreement say about North Koreans? The ROK Constitution claims the entire Korean peninsula as its territory, and Korean nationality law extends citizenship to Koreans born on Korea’s territory.* The issue was contentious enough to prevent agreement after 11 years (!) of negotiations, so the two governments eventually decided to sidestep it:

The two countries previously had made little progress as they could not bridge the gap over whether to cover North Korean defectors and Chinese living in South Korea. The concept of “a national” was not specified, which made it easier for the two parties to reach the agreement, the sources said. [Yonhap]

The two sides also failed to agree on the status of ethnic Koreans in China, who could also have standing to argue their own ROK citizenship under the ROK Nationality Law. To further complicate matters, China asked for the agreement to cover Taiwanese arrested in Korea. A cynical man would say that China raised the latter complication solely to get South Korea to drop the issue of North Korean refugees.

The negotiations received new impetus from the case of ex-leftist and rights activist Kim Young-Hwan, whom the Chinese police arrested in 2012, held for 114 days, and allegedly tortured through sleep deprivation and the administration of electric shocks. Three other South Koreans, including Daily NK correspondent Lee Sang Yong, were also arrested with Kim.

Whether Park invokes the agreement on the refugees’ behalf, and how Xi reacts, will be a test of the quality and the extent of where Park’s conscience ends, and Xi’s begins. Eleven lives hang in the balance.

* Admittedly, this is a sweeping simplification of a complex law.