The Refugee Convention and the Convention Against Torture: failures of China and the United States.

• Author: Eschbach, Elizabeth

INTRODUCTION

In mid-August, 2012, Chinese officials systematically forced Kachin refugees back across the border to Myanmar and back to the conflict, abuse, and lack of basic resources that they had fled. (1) The Chinese government reportedly contacted the ethnic Kachin government, or Kachin Independence Organization ("KIO"), to request that officials on the border assist in transporting refugees. (2) The refugees were loaded on buses and transported back across the border to Myanmar and their makeshift camps and temporary homes were destroyed. (3) Once in Myanmar, the refugees could not simply return to their old homes because Burmese government troops now occupied the areas from which the refugees fled. (4) Once again the refugees tried to make a new home in a place that lacked basic resources by living in makeshift camps with thousands of internally displaced people. (5) Despite recent human rights developments in Myanmar, the internally displaced Kachin people still face serious restrictions on their freedoms. (6)

Several international treaties pertain to the treatment of refugees. The most extensive are the 1951 Convention Relating to the Status of Refugees ("Refugee Convention") (7) and the 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"). (8) Under the Refugee Convention, party states, including China, are prohibited from expelling or "refoul-ing (9)" a refugee where their life or freedom may be threatened. (10) The Convention against Torture prohibits return of a person to another state when there are substantial grounds to believe they would be in danger of torture. (11)

Despite Chinese officials' insistence that conflict in Myanmar has subsided, human rights groups on the ground in Myanmar report a very different situation. Reports indicate that there is continued violent conflict between the Burmese government and the ethnic Kachin government, resulting in thousands of internally displaced people living in inadequate makeshift camps. (12) China has fallen short on its international obligations with regard to refugees prior to the present Kachin situation. In 2002, China labeled North Koreans that fled to China as "economic migrants" or "illegal immigrants," instead of "refugees," thus not affording them the protections refugees are entitled to under international law. (13)

This Note will focus specifically on China's violations of the non-refoulement principle and its failure to carry out proper refugee status determinations ("RSD"). It will also consider the practices of the United States, which has also been criticized as violating the non-refoulement principle. Part 1 will discuss the background of China's refugee policy, including China's treatment of the North Korean refugees in 2002. Part II will discuss the current treaty obligations that China is failing to meet with its forced repatriation of the Kachin refugees and the international response to its actions. Part III will discuss similar failings of the United State of the non-refoulement principle and RSD requirement, in addition to the international response to it. Finally, Part IV will discuss suggested remedies, including the possibility of establishing a third-country asylum system.

1. PAST REFUGEE CRISES IN CHINA

   This is not the first time China has failed to satisfy its non-refoulement obligations under international law. (14) In 2002, China refused to recognize North Koreans who fled across the border as refugees and forcibly repatriated them. The North Korean government considered all of those who fled "traitors." (15) Those forcibly repatriated faced imprisonment and torture upon return to North Korea. (16) Even if the North Koreans did not leave because of fear of persecution, but rather for economic reasons, they became refugees after they left North Korea, or refugees sur place, because of the risk of persecution upon return to their home country. (17)

   By refusing to recognize the North Korean defectors as refugees, China sidestepped its obligation under the Refugee Convention to protect those that fled from North Korea. (18) This action brought condemnation from international organizations and human rights activists. (19) Simple urging to come into compliance by international organizations has been "unproductive and impractical in bringing any real change to China's policy [toward refugees]." (20) No concrete action was taken against China for its violations of the Refugee Convention and the Convention Against Torture.

2. CURRENT OBLIGATIONS AND KACHIN REFUGEES

   1. Refugees and the China/Myanmar Situation

      Once again, there are outcries of China violating human rights and international treaties. On August 19, 2012, China began mass evictions of refugees from the Kachin province of Myanmar. (21) This caused Human Rights Watch (22) ("HRW") to send a letter expressing concern about the Chinese government violating several international treaties, including the Refugee Convention (23) and the Convention Against Torture, (24) both of which have been ratified by China. HRW reminded China that "refugees cannot be returned to a place where lives or freedom would be threatened and that no person can be returned to a place where they would face the prospect of being tortured." (25)

      An individual seeking asylum cannot be forcibly returned to the country they fled unless a fair and impartial RSD finds that the principles of non-refoulement will not be violated (a requirement of the Refugee Convention) and the person will not face the threat of torture (a requirement of the Convention Against Torture). (26) China, however, does not have a RSD procedure in place. Countries that do not have their own RSD procedure typically allow the United Nations High Commissioner for Refugees ("UNHCR") into the country to perform the RSD. (27) There is no evidence that a proper RSD was done before the Kachin refugees were forcibly returned to Myanmar. (28)

   2. Requirements of an RSD Procedure

      The Refugee Convention defines a "refugee" as someone who:

      As a result of events occurring before 1 January 1951 and owing to 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 avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (29) According to the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ("Handbook"), subjective fear of persecution is required to be the primary inquiry in determining refugee status. (30) The Handbook also makes clear that implementation is up to the governments of the party states. (31) While the Handbook provides some guidance, there is still much debate over how to interpret specific terms. (32) There are also a wide variety of procedures used, since it is up to each party state to establish their own RSD procedure. (33)

      Neither the Refugee Convention nor the Convention Against Torture mentions credibility of the refugee as something to be considered during the RSD procedure. (34) However, a majority of refugee status rejections, including RSDs conducted by the UNHCR, occur because it was determined that the applicant lacked credibility. (35) Even though credibility is not a part of the definition of a refugee, the confusion within the UNHCR itself has created another loophole utilized by countries to reject refugee applications while still claiming to be honoring their international commitments. (36) On the other hand, some party states specifically clarify that someone cannot be rejected as a refugee because he or she lacks credibility. (37) "Benefit of the doubt" is a frequently used phrase in refugee law, but many UNHCR agents and party states appear to not actually give refugees the benefit of the doubt. (38)

      1. China's Non-Compliance with the RSD Requirement

      In June 2011, fighting renewed in the Kachin state of Myanmar between the Burmese military and the Kachin Independent Army ("KIA"). (39) HRW estimates that 75,000 Kachin people have been forced from their homes. (40) Approximately 10,000 fled across the border to the Yunnan Province in China. (41) China has no RSD procedure and did not allow the UNHCR access to conduct refugee status determinations. (42) HRW broadly defines Kachin people who have fled to China since June 2011 as refugees because "all have fled armed conflict and rights abuses in Kachin State and would face serious threats to their lives if returned to Kachin State." (43) The absence of a formal refugee determination does not have any legal effect of negating their status as refugees under international law. (44) By forcibly repatriating the Kachin refugees without a fair and impartial RSD, China is violating the non-refoulement provisions of the Refugee Convention and the Convention Against Torture. (45)

   3. International Response to China's Violations

      The letter from HRW both criticized the lack of an RSD procedure and asserted that Chinese officials' claims that fighting in the Kachin Province was subsiding did not accurately reflect the situation. (46) The HRW letter urged China to come into compliance with international law. However, it made no threats of legal international action if China did not.

      In addition to international organizations and human rights activists criticizing China's past and current treatment of refugees, the United States has also been critical of Chinese practices. (47) However, the United States has been much more forgiving of China's violations of international obligations for policy reasons. (48)

      A report prepared for the U.S...