© 2008 John Emerson
I have been living with my husband for about ten years now. We have a seven-year-old son. I never committed any crime. But I don't have any residency status, and neither does my son. It really worries me that he can't go to school.
- 42-year-old woman from Musan, North Korea, living with a Chinese man in a de facto marriage relationship
Where I live, if you want to obtain hukou [household registration permit] for a half-Chinese, half-North Korean child, you must obtain a police document verifying the mother's arrest or another form that you fill out explaining that the mother ran away. You also need signatures of three witnesses who would testify that she was repatriated or ran away, and submit them to the police. But that's not all. You have to treat [bribe] relevant officials.
- Chinese father of MH, age eight, whose North Korean mother was arrested and repatriated to North Korea in 2005
In the Yanbian Korean Autonomous Prefecture in eastern Jilin province,northeast China, many North Korean children and children of Chinese fathers and North Korean mothers live in legal limbo. There is no official data estimating the number of such children living in the area, but local residents put the number at anywhere between a few thousand and several tens of thousands.
A serious problem these children face is access to education, as Chinese schools require verification of identity for admittance and continued schooling. In China, every citizen must be registered under a household registration system called hukou. Chinese law stipulates that a child born in China is entitled to citizenship if either parent is a Chinese citizen. However, since registering a child would expose the identity of the mother, Chinese men who have had children with North Korean women are faced with an awful choice. They can register their child at the risk of exposing their mothers, who could be arrested and repatriated to North Korea as "illegal" economic migrants, or they can decide not to register the child-leaving the child without access to education. When both parents are North Koreans, it is impossible for a child to obtain hukou.
Children of North Korean women face different treatment in different districts in Yanbian. Practices are often harsh: in many districts, officials routinely arrest and repatriate North Korean women found to be living with Chinese men in their districts. Although the law does not explicitly require it, some also refuse to allow the registration of half-North Korean children as Chinese citizens unless and until their mothers have been arrested and repatriated to North Korea. In one exceptional case, the authorities in a small district began allowing in 2007 the registration of half-North Korean children as Chinese citizens without requiring documentation about their mothers.
The Chinese government's policy of arresting and repatriating North Korean women who have children with Chinese men violates China's obligations under both domestic and international law. Such women leave their country for various reasons, including hunger and political persecution. North Korea considers leaving without state permission an act of treason and harshly punishes those who are forcibly repatriated. Returnees face arbitrary detention, torture and other mistreatment, and sometimes even the death penalty. This strong risk of persecution means many North Korean migrants become entitled to protection as refugees.
Repatriating North Koreans in circumstances in which their life or freedom could be threatened at home is a violation of the Convention relating to the Status of Refugees (Refugee Convention), while separating children from their mothers (by repatriating the mothers to North Korea) is a violation of the Convention on the Rights of the Child (CRC). China is a party to both of these treaties. Currently, China does not allow the United Nations High Commissioner for Refugees (UNHCR) access to North Koreans in Yanbian to determine their refugee status.
Under domestic and international laws, China also has a legal obligation to grant all children in China access to education, regardless of their legal status. North Korean or half-North Korean children should not be required to submit copies of hukou for admittance to schools or continuing schooling, nor should their parents and guardians be forced to pay bribes to officials to enable the children to receive education. China must immediately stop such practices and allow access to education for all children, without preconditions.
To investigate these issues, Human Rights Watch traveled to Chinese towns and cities near the China-North Korea border between late November 2007 and early January 2008. Although such research poses significant security concerns, not the least of which is potential reprisals against interviewees, we were able to speak in secure settings with 23 children of Korean women and 18 adults with firsthand knowledge of the conditions such children face (including parents, guardians, missionaries, and others). Of the children, 12 (seven boys and five girls) were North Korean and 11 (six boys and five girls) had Chinese fathers and North Korean mothers. To protect them from possible retribution we have used initials, instead of their names, and have provided only general locations of interviews.
While the number of interviews is small, the problems addressed in this report stem from larger questions of legal status which directly affect tens of thousands of North Koreans in Yanbian and beyond. We are confident that the conditions described by the children and parents interviewed for this report are illustrative of those faced by similarly situated children throughout the region.
In accordance with the CRC, in this report, a "child" refers to anyone under the age of 18.
Human Rights Watch urges the Chinese government to:
·Grant all children access to education without requiring proof of legal identity.
·Allow hukou registration for all children with one Chinese parent without requiring verification of the identity of the other parent.
·Stop arresting and repatriating North Koreans, especially children and women who have children with Chinese men.
·Allow UNHCR access to North Koreans in China, including children, to determine their refugee status.
·Ratify the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
Human Rights Watch urges the North Korean government to:
·Stop punishing North Koreans who leave, or attempt to leave, North Korea without state permission, including North Koreans who are repatriated to North Korea.
·Repeal all laws that criminalize leaving the country without state permission, especially the criminal law provision that defines such travel as treason. Acknowledge the right to leave the country as a basic human right.
III. North Koreans in Yanbian
The countryside in Yanbian where many North Koreans have settled has a heavy concentration of Chinese citizens of North Korean descent. The area also has a serious shortage of young Chinese women because a large number of them have reportedly moved to cities and other countries in search of better paying employment. In the wake of their exodus many North Korean women have formed relationships and had children with Chinese men and assumed jobs as farm workers traditionally held by local women. Some North Korean women have done so voluntarily, while others have been forced into these situations as victims of trafficking.
The migration of North Koreans to China
The mass migration of North Koreans to China was triggered by a famine in the mid-1990s that killed about one million people in North Korea out of a population that numbered just over 20 million. The disaster left many children orphaned, homeless, and stunted for life, both physically and mentally. As survivors struggled to find food and work, hundreds of thousands of North Koreans, mostly those living in areas close to China, crossed the border. Many went to China intending to stay briefly to earn money and return home to feed their families, but some eventually settled there.
In North Korea, freedom of movement to travel abroad is severely restricted. Obtaining a passport is extremely difficult; the process is very time consuming, prohibitively costly, and, most importantly, passports are generally issued to those vetted for political loyalty to the state. Consequently, most North Koreans in China have left without state permission. This is often considered an act of treason, a crime punishable by heavy penalties, including forced labor, long prison terms, and in extreme cases even the death penalty. This violates the internationally recognized right to leave one's country. It also means North Koreans who have left without state permission are refugees,as explained earlier. Since late 2004, North Korea has repeatedly threatened even harsher punishments for those crossing the border without permission, including even longer prison terms than before.
Despite the harsh treatment awaiting such individuals, the Chinese government continues to categorically label them "illegal" economic migrants, and it regularly arrests and repatriates them. China may have legitimate reasons to be concerned about a mass influx of North Koreans into its territory; absorbing a large number of poor and hungry people is a considerable burden to any society. But China also has international legal obligations, as a signatory to the Refugee Convention and other human rights treaties, to offer North Koreans shelter and protection and to grant UNHCR access to the North Koreans in Yanbian to determine their status.
In China, every citizen must be registered under a household registration system called hukou. Details are printed on a passport-like document (called hukou) that has information on the "head of the household" on the first page and those of his or her family members on following pages. The document includes biographical data, such as gender, relationship with the head of the household, date and place of birth, ethnicity, current address, previous address, citizen ID number, height, blood type, education level, occupation, and work address. Obtaining hukou for children of Chinese citizens costs next to nothing.
Children without hukou have no legal access to education, as schools require a copy of the hukou document for admission and continued schooling. Most North Korean women who have had children with Chinese men in de facto marriage relationships do not have resident status in China. Human Rights Watch learned of a number of cases in which, after their mothers were repatriated, children were left entirely without parental care, their fathers either unwilling or unable to take care of them.
Children with North Korean mothers and Chinese fathers
Many children with North Korean mothers and Chinese fathers cannot go to school because their Chinese fathers do not obtain hukou for them, usually because they fear that doing so would lead to the arrest and repatriation of their partners. A 42-year-old woman from Musan, North Korea, told Human Rights Watch:
I have been living with my husband for about ten years now. We have a seven-year-old son. I never committed any crime. But I don't have any resident status, and neither does my son. It really worries me that he can't go to school.
A 32-year-old woman from Gilju, North Korea, offered a similar story. She moved to China in 1998, and has been living with a Chinese man, with whom she has an eight-year-old daughter.
All I want is to live without constantly worrying that they will arrest me and send me back to North Korea. My life is here in China now. It also makes me sad that my daughter is not attending school.
A 39-year-old woman from Gowon, North Korea, left her Chinese "husband" because of abuse. She explained how human traffickers caught her immediately after she crossed the border a few years ago, and sold her together with her son (now seven years old) to a Chinese farmer. He didn't speak Korean, while she didn't speak Chinese, so they had serious communication problems.
The man who bought me was a violent person. He used to beat me with anything he could find: sticks, shoes, whatever. I ran away, because I got tired of being beaten up.
Although her son is now of school age, he does not attend school because he does not have hukou, she said.
In some cases, in a desperate attempt to enable children to go to school, some parents or guardians have had to resort to bribery, lying to school officials, borrowing or purchasing a Chinese child's hukou, or even using fake hukou. But these are illegal and unreliable measures.
BB, a nine-year-old boy with a Chinese father and a North Korean mother, entered the first grade in 2007, thanks to a missionary who made an arrangement to pay school officials. The missionary, a Chinese citizen of Korean descent, told Human Rights Watch:
Schools check on the hukou status of their students several times per year. Even if you get away with not submitting it the first time, you can't get away with it every time. I am afraid the school authorities will eventually expel him.
The missionary also said such a temporary arrangement costs several thousand renminbi each year, in addition to tuition, transportation, and other regular costs. He said:
Considering that a common farmer in this area makes only about 1,500 to 3,000 RMBprofit each year, most of them cannot afford to pay such extra money.
Some Chinese fathers obtain hukou for their children after their North Korean partners are repatriated or have left. Depending on the children's age at the time of departure, thechildren already may be years behind in school at that point.
The tragic reality for such children is that they obtain nationality-and the chance to go to school-only by losing their mothers. SS, a nine-year-old boy, began attending school in 2007. He obtained his hukou after his mother was arrested and repatriated to North Korea.
The Chinese father of MH, an eight-year-old girl, is in the process of obtaining hukou for his daughter. Her North Korean mother was arrested and repatriated to North Korea in 2005. He told Human Rights Watch:
Where I live, if you want to obtain hukou for a half-Chinese, half-North Korean child, you must obtain a police document verifying the mother's arrest or another form that you fill out explaining that the mother ran away. You also need signatures of three witnesses who would testify that she was repatriated or ran away, and submit them to the police. But that's not all. You have to treat [bribe] relevant officials.
Meanwhile, HH, age six, lives with her father and grandmother. Her mother left earlier in 2007 to go to South Korea. Her father, a 36-year-old Chinese man, obtained hukou for his daughter after his partner left. He told Human Rights Watch:
We made the decision [that my partner should leave] because of rumors that the government would crack down on North Koreans in China ahead of the [2008 Beijing] Olympic Games. We could not afford to have her sent back to North Korea. Last time I heard from her was November 2007. She said she was at an immigration detention center in Bangkok, waiting for her transfer to Seoul.
HR, a six-year-old girl, lives with her Chinese father and grandparents. She obtained hukou after her North Korean mother was arrested and repatriated in 2005. HR's family said they have not heard from her mother since. When asked about her mother, she hung her head and said in a barely audible voice that her mother had gone to the police station and never returned.
For TH, age six, it also took the splitting up of her parents to obtain hukou. Her Chinese father lacked a stable job, and often argued with her North Korean mother over it. Her mother told her she was leaving for South Korea, but she heard later that her mother was living with another Chinese man.
In some cases, even with the North Korean mother absent, it is still impossible for the child's guardian to obtain hukou for the child. A 46-year-old Chinese woman of Korean descent who was taking care of her eight-year-old nephew told Human Rights Watch:
Last year, I tried to obtain hukou for him. I was told I had to pay the police 2,000 RMB and submit a statement saying his mother was arrested and repatriated, signed by three witnesses. But his mother had not been arrested or repatriated. She's still living in China, just in hiding. So I couldn't obtain hukou for him. Without hukou, you can't go to school. I am really worried about his education.
Children from North Korea
Most North Korean children in China, especially pre-teens, come to China with their parents. Unlike those with Chinese fathers and North Korean mothers, it is almost impossible for them to obtain hukou, even if their mothers live with Chinese men, as such relationships are not officially recognized as marriage. None of the North Korean children interviewed for this report had hukou, or any other legal identity.
If the parents of North Korean children are arrested and repatriated to North Korea, the children are left in China without any parental care. Some end up living with missionaries or other Chinese guardians.
HH, a 12-year-old girl from North Korea, said her mother disappeared right after they arrived in China in late 2004. She was then sent to an orphanage and did not hear from her mother again. Later, she moved in with her current guardians. She began attending school only last year under an arrangement her guardians managed to broker with school officials by bribing them.
KH, an 11-year-old boy from North Korea, told Human Rights Watch a similar story. His mother disappeared immediately after they crossed the border together in 2004.
We crossed the [Yalu] river in the evening, and stayed over at a Chinese man's house that night. The next morning, my mother was gone. Nobody told me where she went. The Chinese man sent me to an orphanage. I never heard from my mother again.
KH's guardians, the couple who took him from the orphanage, are sending him to school by bribing school officials. He said his friends do not know he is from North Korea.
I don't talk about North Korea. If I did, the police would come to arrest me and send me back to North Korea.
HL, a 13-year-old North Korean girl living with a missionary couple, began attending school in 2007 by borrowing a Chinese girl's hukou.
I am afraid they will find out I am North Korean, and kick me out of school. Because I don't have hukou, I started school only this year, and I am four years older than my classmates, who are all Chinese.
UC, a 16-year-old girl, ran away from her abusive, heavy drinking stepfather in North Korea to go to China in 2005. Shortly afterwards, acquaintances told her that her entire family was sent to a prison camp after being caught attempting to escape. Having no family to go back to, she began living with an older Chinese woman, who bought a deceased Chinese girl's hukou so that she could go to school.
If I went back to North Korea, I would starve. My relatives were all starving. But the Chinese police will arrest and send me back if they find out I am North Korean.
China has ratified the CRC, the Refugee Convention, and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Under article 7 of the CRC, China must ensure that all children born in China are registered immediately after birth. The convention also provides that all children have a right to acquire a nationality, and as a state party, China is obliged to ensure the implementation of this right in accordance with its national law, particularly where the child would otherwise be stateless.
Under article 4 of China's Nationality Law, a child born in China is entitled to Chinese nationality if either parent is a Chinese citizen. The law also stipulates that foreign or stateless persons who have settled in China may naturalize as Chinese nationals if they are "near relatives of Chinese nationals," if "they have settled in China," or if "they have other legitimate reasons" (articles 6 and 7).
China's Compulsory Education Law stipulates that all children who are six years old shall enroll in school and receive nine years' of compulsory and free education, regardless of sex, nationality or race (articles 2 and 10). Under the CRC, China must provide all children with access to education without discrimination, including on the basis of nationality. Under article 13 of the ICESCR, China recognizes that everyone has a right to education, including a free and compulsory primary education for all. The UN Committee that monitors this Convention has confirmed that the right to education without discrimination "extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status."
Also under the CRC, China must prevent the separation of children from their parents against their will.
As a state party to the Refugee Convention, China must not repatriate North Koreans to North Korea in cases where they are likely to face persecution (article 33). Under the convention, China must accord refugees the same access to education as its own nationals (article 22). The Refugee Convention also calls upon states parties to facilitate the naturalization of refugees and requires China to cooperate with UNHCR, which in this case would mean allowing it access to the North Koreans to determine their status.
The Nationality Law of China
Article 4 (Nationality)
Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.
Any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality.
Article 7 (Naturalization)
Foreign nationals or stateless persons who are willing to abide by China's Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications:
(1) they are near relatives of Chinese nationals;
(2) they have settled in China; or
(3) they have other legitimate reasons.
Any person who applies for naturalization as a Chinese national shall acquire Chinese nationality upon approval of his application; a person whose application for naturalization as a Chinese national has been approved shall not retain foreign nationality.
Compulsory Education Law of China
The State shall institute a system of nine-year compulsory education. The authorities of provinces, autonomous regions, and municipalities directly under the Central Government shall decide on measures to promote compulsory education, in accordance with the degree of economic and cultural development in their own localities.
All children who have reached the age of six shall enroll in school and receive compulsory education for the prescribed number of years, regardless of sex, nationality or race. In areas where that is not possible, the beginning of schooling may be postponed to the age of seven.
The State shall not charge tuition for students receiving compulsory education. The State shall establish a system of grants-in-aid to support the school attendance of poor students.
Convention on the Rights of the Child (CRC)
Article 2 (Discrimination)
1.States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Article 7 (Identity)
1.The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2.States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 9 (Separation from Parents)
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
Article 28 (Education)
1.States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all.
Convention relating to the Status of Refugees
Article 22. Public education
1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.
Article 27. Identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.
Article 33. Prohibition of expulsion or return ("refoulement")
1.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.
Article 34. Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
Article 35. Co-operation of the national authorities with the United Nations
1.The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
a.Primary education shall be compulsory and available free to all;
b.Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
c.Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
d.Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education.
General comment No. 13 on CESCR
Article 13: Special topics of broad application
Non-discrimination and equal treatment
31. The prohibition against discrimination enshrined in article 2(2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination. The Committee interprets articles 2(2) and 3 in the light of the UNESCO Convention against Discrimination in Education, the relevant provisions of the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169)….
34. The Committee takes note of article 2 of the Convention on the Rights of the Child and article 3(e) of the UNESCO Convention against Discrimination in Education and confirms that the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.
37. States parties must closely monitor education-including all relevant policies, institutions, programmes, spending patterns and other practices-so as to identify and take measures to redress any de facto discrimination. Educational data should be disaggregated by the prohibited grounds of discrimination.