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China’s asylum hypocrisy

  • 28 February 2014

This week China criticised Australia's treatment of asylum seekers. The criticism, raised at a bilateral human rights dialogue, is good politics: China is using Australia's cruel and inhumane asylum policy as diplomatic leverage. Nevertheless, it is astounding hypocrisy from a country that returns refugees to danger, including to North Korea, a state infamous for its widespread violations of human rights.

China's vice-minister of foreign affairs, Li Baodong (pictured), raised the question of whether refugees will be 'illegally repatriated to other countries' by Australia. He is referring to the principle of non-refoulement, which requires countries to refrain from returning refugees to a place where they face persecution.

Non-refoulement, set out in the Refugee Convention, prohibits the forced return 'in any manner whatsoever' of refugees to places where their 'life or freedom' would be threatened on account of their 'race, religion, nationality, membership of a particular social or political opinion'.

The principle is the fundamental plank of international refugee law and the first and foremost obligation of countries that have signed the Refugee Convention, such as Australia and China. However, the scope of non-refoulement is limited. Although non-refoulement has erroneously been thought to include a duty to offer asylum, the principle only extends to a responsibility not to return a refugee to persecution.

While there are many problems with Australia's asylum policy, the Government's harsh treatment of asylum seekers probably does not amount to refoulement. In fact, a rationale of the current regional arrangements with Nauru and Papua New Guinea is to avoid violating the non-refoulement principle while still deterring asylum seekers. That said, the 'enhanced screening' process for Sri Lankan asylum seekers, some of whom are returned without access to legal advice, certainly calls in to question Canberra's commitment to the principle.

China, on the other hand, has a track record of returning refugees to danger. As recently as June 2013, China refouled nine North Korean dissidents who had fled the country. The Office of the High Commissioner for Human Rights expressed 'extreme concern' for the young defectors, citing 'risk of severe punishment and ill-treatment' upon their return and dismay that China had abrogated their obligation of non-refoulement.

All nine defectors were reportedly orphans, including up to five children. The group was arrested by Laotian police while crossing the Laos-China border and sent back to China, from where they were returned to North Korea. At the time of the return, the Special Rapporteur on human rights in