In early November 2019, less than a week after their rescue in South Korean waters, two North Korean fishermen were repatriated to the North where they likely faced execution. Handcuffed and blindfolded, they were handed over to the North Korean authorities at the border village of Panmunjom. The South Korean minister of unification claimed that the two were “atrocious criminals” who “lacked sincerity when they said they wanted to defect.” This was the first time since the end of Korean War that the country had expelled North Korean refugees — or “defectors” in a more common and politically loaded term — who were already on South Korean soil and expressed a desire to stay.
While much of the early discussion on this incident centered on the constitutional and international legal implications, it missed their connection to the wider political symbolism. The expulsion of North Korean refugees is the first substantive move that Seoul has brought to bear toward a two-systems solution on the Korean peninsula. It signals an unprecedented consolidation of Seoul’s engagement policy.
Illegal at Home and Abroad
Many have asserted that Seoul’s decision to expel those North Korean refugees is either unconstitutional or internationally illegal. It is, indeed, both.
Articles 2 and 3 of the South Korean constitution stipulate that it is the sole sovereign of Korea and that all Koreans residing in the Korean peninsula — whether North or South — are constitutionally entitled to its protection. A Supreme Court ruling in 1996 also reaffirmed that every North Korean refugee has a right to resettle in the South. This means whether the two North Korean fishermen committed crimes on their way to the South is, in fact, immaterial. As Cha Jina, a constitutional law professor at Korea University, contends, they should have been granted due process — as any South Korean criminal — and faced trial.
The Unification Ministry refutes this interpretation. Citing Article 9 of the North Korean Refugees Protection and Settlement Support Act, the Ministry’s spokesperson Lee Sang-min claimed the two fishermen were serious criminals and, thus, exempt from receiving protection. This is a gross misapplication of the law, however. Protection, as defined under Article 8 of the same Act, refers to the provision of government benefits, not the entitlement to resettle in the South. By the Ministry’s own count in October 2019, 137 North Koreans were found ineligible for “protection” in the last five years, among them convicted murderers. None were deported.
Abroad, Article 3 of the United Nations Convention Against Torture — to which South Korea is a party — prohibits states from extraditing someone “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The Ministry defended its decision by pointing to Article 16, which provides that the requirements of the Convention are “without prejudice to the provisions of any […] national law […] which relates to extradition or expulsion.” In their view, because the two fishermen had confessed to serious crimes, their deportation was valid under the country’s extradition rule.
Legal experts disagree. According to Jhe Seong-ho of Chungang University, the extradition rule cannot be invoked because “the deportees were never formally indicted or convicted.” Phil Robertson of Human Rights Watch concurs: “South Korean authorities should have thoroughly investigated the allegations against the two men and ensured they had a full opportunity to contest their being returned to North Korea.” Using their supposed criminality as a justification for expulsion amounts to violating the presumption of innocence — a constitutional as well as an international human right.
A Political Decision
A more important question concerns not legal, but political implications of Seoul’s decision: What does the repatriation of refugees mean for its broader policy of engagement with North Korea?
Since the very beginning of his tenure, South Korean President Moon Jae-in has advocated for a “peace regime” on the Korean Peninsula. In a 2017 speech in Berlin, he introduced the concept, highlighting a need to “institutionalize peace.” It would be a “comprehensive solution,” he declared, aimed at “easing North Korea’s security and economic concerns.”
What precisely this “peace regime” entails is less clear, however, and appears to vary in scope and emphasis depending on who one asks. Chung-min Lee of the Carnegie Endowment for International Peace specifically stresses replacing the armistice with a peace treaty and enhancing inter-Korean cooperation. Duyeon Kim of International Crisis Group, on the other hand, sees a peace treaty and a peace regime as “related but very different,” defining the latter more broadly as “a comprehensive system of norms, institutions, and rules that ensures lasting peace.”
Still, at its minimum, a “peace regime” between the two Koreas requires making concessions in their claims to sovereignty and stated policies of unification. This is because, at present, each professes to be the sole sovereign over the entire Korean Peninsula and its people; the “other” is treated, if implicitly, as a threat against which the country must be eventually unified. A compromise will thus be necessary, expressed either as “an arrangement in which the two Koreas de facto recognize each other’s different political systems and ideologies” — as Sang Hyun Lee of Sejong Institute envisions — or as official revisions to their constitutions and relevant policies.
Seen in light of Seoul’s “peace regime” agenda, its decision to expel the refugees becomes more telling. Despite its bold rhetoric, Seoul had so far been reluctant to adopt any unilateral measure that formally delineates Korean peoples under two systems. Yet, the recent repatriation carries an explicit admission that South Korean laws do not apply to North Korean citizens. This sets a vital political precedent for Moon’s vision of a “peace regime,” wherein he sees — however quixotically — the systems of the North and the South coexisting in one Korea.
A Human Sacrifice
A two-systems approach in Korea, if adopted, will have far-reaching consequences — and among the most immediate and devastating will concern the fate of the North Korean refugees. This approach requires recognizing the North as a legitimate state and, by implication, denying its people protection in the South as “Korean” citizens.
Seoul has discreetly moved in this direction as a matter of fact. Barely a year into Moon’s tenure, his administration slashed the budget earmarked for refugee support and funneled the funds into cross-border projects with the North. In a more controversial intervention, the Unification Ministry even shuttered the office of a human rights foundation that provided refugee support. North Korean refugees and activists residing in the South also saw their speaking opportunities decline markedly under Moon’s leadership. The implication has been resounding: North Korean refugees are not welcome.
Already, a “chilling effect” appears to have emerged in refugee flows to the South. In 2019, a total of 1,047 North Korean refugees arrived in the South. That constitutes a striking 26 percent decrease from 2016 — under the previous administration — and the lowest since Kim Jong-un assumed power in 2011. A sharp uptick in North Korean secondary migration to countries such as Canada, the United States, and the United Kingdom further suggests the refugees’ growing aversion to settling in the South.
As Moon doubles down on his peace initiative, North Korean refugees will face greater challenges in the South. The latest case of repatriation shows that his administration is willing to go far, including, possibly, abandoning South Korea’s long-held political commitment to unification — and all Korean peoples. That is more than a rhetorical change in his policy of engagement; and one that warrants closer scrutiny as Moon scrambles to revive the stalled talks with the North in 2020.
Eun A Jo is a PhD student in the Department of Government at Cornell University.