V. China’s Legal Obligations

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.26 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.27

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.28 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).29

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).30 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.31 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.”32

Also under the CRC, China must prevent the separation of children from their parents against their will.33

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).34 Under the convention, China must accord refugees the same access to education as its own nationals (article 22).35 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.36

26 Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc A/44/49 (1989), entered into force September 2, 1990, art. 7.

27 Ibid.

28 The Nationality Law of China, (accessed on March 18, 2008), art. 4.

29 The Nationality Law of China, arts. 6 and 7.

30 Compulsory Education Law of China, (accessed on February 4, 2008), arts. 2, 5 and 10.

31 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1996, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 3, entered into force January 3, 1976.

32 CESCR General Comment no. 13 (The Right to Education), para 34.

33 CRC, arts. 2, 7, 9, 28 and 34.

34 Refugee Convention; Protocol Relating to the Status of Refugees (Refugee Protocol), 606 U.N.T.S. 267, entered into force October 4, 1967.

35 Ibid.

36 Ibid.