중국에서의 UN인권조약 이행 - 탈북자 보호문제를 중심으로 -

Abstract

This study aims at protecting human rights of North Korean defectors in China in the perspective of the UN human rights treaties which China signs and ratifies. In domestic law, based on China's Constitution in 2004 that has the provision to protect human rights in the country, China should respect and protect human rights of North Korean refugees. Also China will be able to determine them refugees according to Article 32 of China Constitution which grants for the right to seek asylum for political reasons. In international law, China joined the 1951 Refugee Convention and the 1967 Refugee Protocol and based on these 'Convention refugees' status can be granted to North Korean defectors. But this arrangements does not seem to be possible for the time being. China can be able to apply the Refugee Convention directly or enact relevant domestic law to implementing international human rights treaties. Also when the capital punishment torture or severe detention in compliance with a North Korea Criminal Law Article 47 are expected to give to North Korean defectors, a complementary protection system is available and they are the subject of complementary protection in international law. According to the international human rights treaties which China general accedes and ratifies, China has international responsibility to grant them the status of `de facto regufees' or complementary protection. In particular, article 7 of International Covenant on Civil and Political Rights and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(repatriation to be torture ban) which China accedes and ratifies are invoked. Even if you see North Korean refugees as internally displaced persons,as China ratifies the International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, Convention on the Elimination of all Forms of Discrimination Against Women, and International Convention on the Elimination of All Forms of Racial Discrimination, 'humanitarian status', 'humanitarian stay', or 'temporary protection 'can be granted for North Korean defectors. Avoiding diplomatic friction with North Korea, China can allow the UNHCR to recognize them the status 'mandate refugees'. Possibly saying that the defectors from North Korea may belong to comprehensive refugees in terms of international law as a matter of wide sense, in compliance with international law and state practices, at least would be `the subjects of complementary protection'. In any cases the states which accommodate the defectors from North Korea who does not want to come back to North Korea should provide them at least temporary protection and apply the principle of none-refoulement. In order to promote world peace and security, the most powerful tool is iInternational Human Rights Law. Human rights protection of peoples and North Korean refugees in China depends not on lack of applicable law, but China government's positive which implement and apply China Constitution and UN human rights treaties in which China proclaims formal commitments to international society.