On Dec. 11, 2002, the representatives from the three groups, International Human Rights Volunteer, Helping Hands Korea, and LFNKR visited the UNHCR Tokyo Office. This is their letter.

December 11, 2002
UNHCR-Japan, Tokyo

Dear Sir,

It seems to us particularly relevant at this juncture to be reminded afresh that the mandate of the UNHCR is to protect refugees and to promote solutions to their problems. It pains us therefore to draw your attention to the fact that, based on our collective volunteer activities over a period of years of assisting North Korea refugees in China, the UNHCR has fallen woefully short of fulfilling its mandate in this context. We hasten to add that our assessment is not motivated whatsoever by a desire to embarrass your office. Instead, our sole concern is to bring desperately needed protection to North Koreans in their highly justifiable bid to claim that which is rightfully theirs: a genuine review of their application for refugee status. On what do we base our evaluation of UNHCR activities, or lack thereof? 1. It has failed to protect them despite its own acknowledgement that they warrant international protection.

2. As an explanation for its lack of contact with North Koreans in China, the UNHCR states that China does not provide it access to the refugees or the areas in which they are found. China is blamed for UNHCR's own dereliction. However, the bilateral Agreement between China and the UNHCR of 1995 clearly states that your staff has the right of "unlimited access to refugees in China at all times." Lamentably, there is no record of the UNHCR insisting on its clear rights in this regard with the government of China. This passive stance has taken place against the backdrop of a continuing human tragedy of enormous magnitude.

3. The treaty of 1995 also stipulates that assistance to refugees shall be carried out on the basis of relevant UN Resolution 2002/27 passed in August of this year clearly states that refugee status can be granted based on fleeing "poverty and destitution." This landmark resolution has obvious and enormous ramifications when applied to China's continued insistence that all North Koreans in its country are "economic migrants." Once again, there is no record of the UNHCR making use of this resolution to counter China's repeated claim regarding this economic migrant label.

Thus, China's violation of international refugee law is plainly evident. What is equally evident is that UNHCR is in a unique position to effect China's compliance. We believe that the enforcement mechanism is found in a bilateral Agreement signed by China and the UNHCR seven years ago. Under that Agreement, the UNHCR has the right to unimpeded access to refugees in China at all times. It also has the right to bring disputed issues before a panel of arbitrators, who will apply international refugee law.

In light of the aforementioned circumstances, we wish to ask UNHCR for its position as regards initiating the procedure for mandatory binding arbitration to bring to a halt the ongoing arrest of North Korean refugees and aid workers assisting them on humanitarian grounds. We wish to know exactly what needs to happen for the UNHCR to take its mandate seriously.

At the same time, we should be extremely grateful if your good office would agree to bring to the attention of the Chinese authorities and successfully obtain their reply to the following important questions we have asked the Chinese authorities on a number of occasions and have to date received no response:

Is the status of North Korean defectors in China subject to international law or national law?

It is our firm belief that the question of refugee status is an international issue and therefore should be governed by relevant international laws (i.e. 1951 Convention Relating to the Status of Refugees and the Protocol thereto of 1967) and not to be determined by Chinese national law or any political or economic considerations.

Furthermore, your government has accepted that an international human rights agreement is binding under Chinese law and China must honour the corresponding obligations. In the event of discrepancies between domestic law and an international human rights agreement the international agreement will take precedence (Report of China - HRI/CORE/1/Add.21/Rev.2, 11 June 2001).

Please explain on what basis the defectors are denied the right to even substantiate their claims as refugees.

Very regrettably, the Chinese Government is applying national law to an international issue that is to be governed by customary international law, it must first explain why the defectors are not eligible for refugee status under customary international law. Arresting defectors without this explanation and without granting them the benefit of fair and efficient asylum procedures makes the Chinese government's decision appear highly arbitrary, and defiant of human rights principles and international justice. In the name of fundamental human rights and humanity, the international community has the right to request the Chinese Government to first publicly articulate why the defectors in question have not been found eligible for refugee status.

Can the Chinese Government justifiably change the defectors with Illegal Entry?

Without fair and efficient asylum procedures, the Chinese authorities charge all the defectors with illegal entry for their presence in China. It must be indicated that this is in violation of the 1951 Convention, Article 31, which prohibits the Contracting States from imposing penalties, on account of their illegal entry of presence, on refugees. Illegal entry, therefore, does not preclude defectors from being refugees they claim to be. All individuals who commit desperate acts, such as illegal entry, should be granted the opportunity to substantiate their claims in accordance with the international refugee laws that were established to protect them. (Technically, the defectors in question are illegal border crossers at the very outset. In essence, no concept of refugee could exist anywhere in the world and no refugee laws could be in place if defectors are unconditionally arrested solely based on their illegal entry or presence, as in China.)

How does the Chinese Government justify punishing aid workers who help Illegal Immigrants when they act on humanitarian grounds?

All governments have the sovereign right to deal with illegal immigrants. However, the Chinese Government punishes not only those it labels illegal immigrants, but also anyone helping them based on humanitarian grounds. Such ill-advised actions are inconsistent with the prevailing norm of behavior consistent with international community membership. By so doing, isn't the Chinese Government forcing innocent citizens and international aid-workers to deny fundamental human rights to people in distress? Is the Chinese interpretation of humanity at odds with the rest of the world?

Are the defectors economic migrant and, therefore, not refugees?

On the basis of abundance of information documented and available to us, we believe that none of the North Korean defectors was in China with the intent to pursue business or seek gainful employment. A migrant enjoys the protection of his or her home government; a North Korean defector does not.

Ironically, and to further illustrate this point at issue, many defectors have been arrested while attempting to leave China for a third country. We are compelled to raise the question: If the defectors are economic migrants, pursuing business and/or seeking gainful employment in China, why then would they attempt to leave China at the first opportunity, bound for a third country wherein lies far less economic opportunity than China (e.g. Mongolia, Myanma, Laos)? Their continuing attempts to leave China betray the Chinese Government's allegation of their motives as economic migrant and clearly manifests their purpose to seek freedom.

One very recent case in point: a group of 18 North Korean defectors were arrested by the Chinese authorities at a location near China/Vietnam border on November 13, 2002. The group includes a 7-month old baby and 4-year old child. They are now believed to be detained in Nanning city, Guangxi Province, China. If they were indeed economic migrants, why would they attempt to leave China at the very first opportunity?

We fully understand that we have brought to your attention a number of thorny issues that require significant attention. Once again, we wish to declare that were these matters merely academic in nature, we would have little reason to declare them with such fervor. However, as you will surely acknowledge, the points addressed above constitute life-and-death matters for thousands, if not hundreds of thousands of North Koreans. For this, and only this reason, we urge your most urgent attention and action on behalf of North Korean refugees.

Eagerly awaiting your reply,

Sincerely,

Nakadaira Kenkichi
Representative
Life Funds for North Korean Refugees
Contact Us


TA Peters
Representative
Helping Hands Korea
tapkorea@unitel.co.kr

San Hun Kim
International Human Rights Volunteer
guygeo@softgram.com