INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN NORTHEAST ASIA

Tsuneo Akaha and Brian Ettkin
Monterey Institute of International Studies

Introduction
A human rights analyst observes, "The language of human rights, not to mention the view and perspectives of migrants,
have been largely absent from the migration policymaking arena to date."1

As another observer puts it, "[M]uch– perhaps

most – national migration policy making takes place outside a human rights framework.‖2

Among the reasons cited for thegeneral lack of attention to the need to protect the human rights of migrants are a lack of data, gaps between different
institutional mandates (migrants fall through the cracks in international law), parallel systems for protecting employment rights
and human rights, and limited reporting by human rights NGOs. The dominance of refugee protection in the migration field
is another reason mentioned, as well as the fact that until recently human rights law only made explicit reference to migrants inthe context of free (voluntary) movement of people across borders.3
A change is afoot. The international community is beginning to recognize the relationship between migration andhuman rights.

During the 1990s, the UN General Assembly adopted the International Convention on the Protection of theRights of All Migrant Workers and Members of Their Families (ICMW) and the UN Human Rights Commission identified
migrants as a vulnerable group and appointed a Special Rapporteur in 1990. As well, an expert study by the Sub-Commission
on the Promotion and Protection of Human Rights charted the protection of non-citizens' rights under international law.4

The

Global Commission on International Migration (GCIM) was launched in January 2004. The World Commission on theSocial Dimension of Globalization, established by the International Labor Organization (ILO), issued a report calling for the6

development of fair rules for the cross-border movement of people to complement fair rules for trade and capital flows.5
Another sign of the growing global awareness of the importance of migration and of the protection of migrants’ rights is theHigh-Level UN General Assembly Discussion scheduled for September 2006 to discuss these issues.
The purpose of this paper is to assess the state of human rights protection for border-crossing migrants in Northeast
Asia and to explore the potential of regional cooperation in promoting the cause of human rights protection in this region.
We will first look at the state (scale and nature) of international migration in Northeast Asia. We will highlight the mostserious human rights problems in the region.

We will then provide a brief review of the human rights principles and norms

established under conventional and international customary law.
Northeast Asian countries have ratified.

In that section, we will also see which pertinent treaties the

In the final section we will explore the advantages and disadvantages of a regional

approach to the promotion and protection of human rights of international migrants in Northeast Asia.

Definitions
Before we proceed, we need to define some key terms used in this discussion: ―migration‖; ―human rights‖; and―Northeast Asia.‖
In this paper, we are primarily concerned with migration across national borders, leaving internal movement of people
to other studies. Traditional population studies define migration as ―the geographic movement of people across a specified
boundary for the purpose of establishing a new permanent or semipermanent residence.‖6This definition, however,overlooks some of the nuances of primary migration modes in Northeast Asia—such as Chinese shuttle traders moving
between northeast China and the Russian Far East.

Such cross-border human flows reflect a different type of migration.

They differ temporally—because they are not necessarily permanent or semipermanent—and qualitatively—because their
purpose is not necessarily to establish new residence. Yet, we cannot dismiss such people as mere business travelers. Their
impact on both the sending and receiving countries is greater than that of the itinerant businessperson or tourist.7

Thus, we7

define migration broadly to include temporary human flows across national borders, in addition to migration for the purpose of
establishing new and more permanent residence.
Most of the cross-border movement of people takes place legally but some of it is illegal.

Many migrants are―undocumented‖ in the sense that they lack the necessary and/or proper documents for departure, admission, transit, or return.
Many migrants are considered ―irregular‖ in the sense that the lawfulness of their entry or residence in the transit or destination
country has not been established or is contested by the respective state. Our discussion will include all these categories ofpeople who, for most part, voluntarily cross national borders.

In addition, our discussion will include refugees who arecompelled to flee their country of origin for various reasons, as well as persons who are trafficked abroad against their will andthose who legally and voluntarily move to a foreign country but then end up in a situation of exploitation or human rights
abuse, such as in the sex industry.
In this discussion, ―human rights‖ is also defined broadly and includes all the basic human rights enshrined ininternational human rights conventions, those human rights for which there is widely recognized customary international law,as well as those rights which are not yet firmly established. Our discussion will also include treaties and customaryinternational law that specifically addresses the rights of migrants who cross state borders.
Turning to the question of what territories constitute ―Northeast Asia,‖ the difficulty of drawing clear boundaries
affects our understanding of international migration in the region.

For example, if we were to calculate the region’s share of

total global migrant stock in 2000, it would account for only 11.7 percent, or 19,029,000 persons.

However, this figurereflects the inclusion of all territories of all Northeast Asian countries: China, the Democratic People’s Republic of Korea(DPRK), Japan, Mongolia, the Republic of Korea (ROK), and the Russian Federation. Clearly, including the entire expanseof the Russian Federation in Northeast Asia is hardly justifiable. Were we to subtract Russia and its 13,259,000 migrants
from the picture, Northeast Asia would be home to only 3.4 percent of the world’s total migrant stock—and even this number
includes some 2.7 million migrants in Hong Kong, Special Administrative Region (SAR).8

In the present paper, Northeast

8

Asia is geographically limited to the three northeastern provinces of China (Heilongjiang, Jilin, and Liaoning), DPRK, Japan,
Mongolia, ROK, and the territories of the Russian Far East.

International Migration in Northeast Asia
In this section, we will briefly describe the causes (―push‖ and ―pull‖ factors) and dynamics of cross-border migrationin Northeast Asia.

Causes
The causes of migration, whether in Northeast Asia or elsewhere in the world, are some combination of demographic,
economic, political, and other factors.

In the case of Northeast Asia, demographic and economic conditions play the largest

role. Both sets of conditions have push and pull components.
Demographic changes in the region over the past twenty years have established conditions in both sending andreceiving countries conducive to migration. China’s large population is the most evident push factor in the region, and its
population is expected to grow for several decades to come. Significant internal migration, accompanied by rapid
urbanization, increases the pressure for continued migratory outflows to other nations.9

It is worth noting that Northeast

Asian host nations receive significant numbers of migrants from countries outside of this region experiencing similar
demographic transitions, e.g., India, Thailand, and the Philippines. Japan is host to a large number of Latin Americans ofJapanese descent.
On the pull side, many receiving nations in the region are entering a phase of population decline. Japan, ROK, andRussia in particular are experiencing rapid population decline, due to low fertility rates and, in the case of Russia, highmorbidity as well. Accompanying this transition is the ageing of the labor force in these same countries. This situation has

9led to a shift in the population structure in which a growing number of elderly dependents must be supported by a diminishingnumber of workers.
Migration for economic purposes is not a new phenomenon in Northeast Asia, although it may have been temporarilysuspended due to Cold War political factors.10

In terms of labor supply, underemployment in sending countries serves as themain push factor. Economic hardship in China’s northeastern provinces has led to high levels of unemployment in that
region, causing some to look to Japan, ROK, and Russia for opportunities. The Russian Far East has also lagged behind theoverall economic performance of the nation, and some Russians have sought employment elsewhere in Northeast Asia.

A

number of workers from DPRK have also looked for opportunities to work outside of their own poverty-stricken nation.
Again, Northeast Asia has become host to migrants from Asian nations outside the region experiencing economic hardship.
Rapid economic development in Japan and ROK set the stage for the demand side of labor migration in the region.
On the one hand, wages for unskilled or manual labor in these economies had risen to a level attractive for workers from lessprosperous countries, but they were no longer attractive to the native populations, who now expected a higher standard ofliving. On the other hand, ageing and population decline had reduced the labor force in the host countries, requiring an
inflow of migrant labor in order to guarantee continued economic growth.11

However, both Japan and ROK have long

maintained restrictive immigration policies. As a result, illegal or irregular migration into these countries has grown in recent
years.12
In addition to demographic and economic reasons, individuals might be motivated to leave their home countries forpolitical reasons. The political situation in Northeast Asian nations has been relatively stable. As well, potential receiving
states, namely Japan and ROK, have been reluctant to accept refugees. Consequently, the flow of refugees and otherdisplaced persons in Northeast Asia has been relatively small as compared to other regions.

The primary exception appears to

be DPRK, as we will discuss below.

10Dynamics
Northeast Asia was home to 19,027,941 international migrants in 2000, as compared with 15,981,436 in 1990 (if Hong
Kong and Macao are excluded, then 16,033,680 in 2000 and 13,558,789 in 1990). All nations increased their stocks ofinternational migrants. Some nations saw the total number of migrants increase almost twofold (e.g., Japan and China) (seeTable 1).13
What is missing is the composition of this migrant stock. Data for all Northeast Asian countries are incomplete.

11Table 1.

Migrant Stock, NEA Nations, 1990, 2000.

Major area,
region, country or
area

Estimated number ofinternationalmigrants at mid-year(both sexes)

Estimated total
population at midyear (thousands)

Estimated numberof female migrants

Estimated numberof male migrants

Percentage ofinternationalmigrants

Femalemigrants aspercentage of
total migrants

Net Migration

1990

2000

1990

2000

1990

2000

1990

2000

1990

2000

1990

2000

4,292,736

5,768,541

1,349,961

1,481,110

2,102,777

2,960,174

2,189,959

2,808,367

0.32

0.39

49.0

51.3

379,808

512,688

1,155,305

1,275,215

186,047

263,090

193,761

249,598

0.03

0.04

49.0

51.3

Hong Kong, China

2,218,473

2,700,531

5,704

6,807

1,092,722

1,455,567

1,125,751

1,244,964

38.89

39.67

49.3

Japan
Korea, Democratic
People's Republic

877,210

1,619,790

123,537

127,034

436,271790,066

440,939829,724

0.71

1.28

49.7

34,36436,562

19,95622,268

16,83318,762

17,531

17,800

0.17

0.16

49.0

51.3

0

0

0

Korea, Republic of

572,053

597,11242,86946,835

264,807284,790

307,246

312,322

1.33

1.27

46.3

47.7

-189,420-115,000-80,000

Macao, China

204,174

293,730372

450

102,837

143,728

101,337

150,002

54.86

65.30

50.4

48.9

37,82016,40016,400

6,654

8,128

2,216

2,500

3,259

4,171

3,395

3,957

0.30

0.33

49.0

51.3

32,720-60,000-90,000

Russian Federation

11,688,700

13,259,400

148,292

145,612

6,325,859

5,362,841

6,051,905

7.88

9.11

54.1

54.4

1,314,480

1,858,210

2,300,000

NEA, All Territories
NEA, No HK and
Macao

15,981,436

19,027,941

1,498,253

1,626,722

8,428,636

7,207,495
10,167,66
8

7,552,800

8,860,272

0.08

1.27

52.7

53.4

851,530

967,090776,530

13,558,789

16,033,680

1,492,176

1,619,465

7,233,077

8,568,373

6,325,712

7,465,306

0.08

1.07

53.4

53.4

787,960

650,690

460,130

Eastern Asia
China

Mongolia

1990

1995

2000

-528,050

1,280,700

1,950,000

53.9

25,750300,000

300,000

48.8

158,230

248,180

280,130

Source: World Bank, World Development Indicators, <http://devdata.worldbank.org/> (accessed August 19, 2005)

12

Russia, the country with the largest migrant stock in Northeast Asia, compensatedfor 14 percent of its population shortfall with immigration in 2004 and this figure is
expected to grow to 22 percent in 2008.14

However, Northeast Asian countries areneither major sources nor major destinations of migration. No nation in this region has
ranked in the top five sending nations to Russia since 1994, when officials registered an
inflow of 328,368 Chinese nationals.15

Between 1997 and 2004, China played an ever-diminishing role in immigration to Russia, declining sharply from 2,861 arrivals to 212.
The same trend is true for departures from Russia to China: 1,222 in 1997 and 154 in
2004.16

In 1999, Russia officially received 24,256 registered workers from China and10,110 from DPRK.17

Of course, actual numbers may be different, given significant

suspected irregular migration into the Russian Far East from China. No other Northeast
Asian nation made a significant contribution to Russia’s migrant stock.
In ROK, the economy has become increasingly dependent on labor migration.
Rapid economic expansion and population ageing resulted in labor shortages beginningin the 1980s. ROK supplemented its labor force with workers from the region, many ofwhom were undocumented.18

Inflows of officially employed migrants to ROK peakedin 1989 with 164,463 persons, the majority of whom were from Japan. After somedecline in the 1990s, the numbers rose again.

In 2002, ROK received 118,303

persons—22,389 from China, 17,778 from Japan, 6,143 from Indonesia, and 4,917 fromthe Philippines. Over the same period, ROK was a sending country to Japan, Hong
Kong, Taiwan, Singapore, China, and the Philippines.

In 2002, ROK sent 251,604

persons abroad—56,246 to Japan, 50,978 to China, and 6,481 to the Philippines.19

By

2003, foreign workers comprised about 2 percent for the total labor force in ROK.
Estimates place the total number of foreign workers at 388,816 persons.

Most work inlow-skilled occupations, and about 35.5 percent are presumed to be irregular workers.20
Japan also relies increasingly on migrant labor.

The labor force saw the numberof foreigners working legally in Japan jump from 750,000 in 1975 to 1.8 million in 2001.
This last number was supplemented by a supposed 250,000 irregular workers.21

By

2004, the number of registered foreigners living in Japan had increased to 1,973,747
persons. Koreans, including those born in Japan, accounted for the largest share with13

607,419 persons (30.8% of total), followed by 487,570 Chinese (24.7%), 286,557
Brazilians (14.5%), and 199,394 Filipinos (10.1%).22
Over the past thirty years, China has emerged as one of the world’s leading
sources of labor migration outflows. However, in recent years, the dynamics of
migration in China have grown more complex, and it is becoming both a sending andreceiving country.23

Without question, China remains a major migrant sending nation.

In 2002, 118,000 Chinese nationals took up residence overseas, up from 70,000 in 2001.
The Chinese government registered a total of 20,204,600 exits in 2004.24
Papademetriou and Margon report that ―in 2002, the Chinese government estimated that
more than 400,000 Chinese left for overseas employment.‖25

The number of Chinese

working overseas is bound to grow as part of the fast swelling number of Chinese citizens
going overseas, which is expected to grow from about 28.8 million in 2004 to 100 million
in 2020.26

Refugees
Despite an increasing number of persons of concern to the UN HighCommissioner for Refugees (UNHCR) around the world, the global refugee population
has steadily dropped since 2001, marking a 24-percent decline over the past four years.27
Other categories of concern include asylum-seekers, internally displaced persons (IDPs),
returned refugees, and returned IDPs.
The refugee population in Northeast Asia has also declined steadily.

In 1996,

there were a reported 542,080 refugees located in Northeast Asian nations (excluding
Hong Kong and Macao SARs). China accounted for more than half of this number andRussia for just less than half.28

By 2004, the total refugee population in the region had

declined to 303,238 persons. Of this number, the vast majority (98.72%) lived in the
People’s Republic of China.29

With this decline in refugee population, Northeast Asia’sshare of the global refugee population—though never significant compared to otherregions—has diminished as well.

In 1997, the region accounted for 4.51 percent of the

global refugee population. That share had declined to 3.37 percent in 2004.30
The composition of refugee-sending nations has changed, too.

Northeast Asian

nations were the origins of 365,330 refugees in 1994. Although this number had

14decreased to 151,400 persons in 2000, it had increased to 243,705 persons by 2004.
Again, Russia and China were the primary source countries for refugees.31

Country Cases
People’s Republic of China
China is both a refugee sending and receiving country. Almost all official
refugees entering the People’s Republic of China arrive from Vietnam. Refugees
leaving PRC mostly seek asylum in Western nations (United States, Germany, etc.) andIndia. China is a signatory to the 1951 Convention and the 1967 Protocol.32

As willbe discussed later, these figures clearly reflect the Chinese government's reluctance toclassify North Koreans in PRC as anything other than economic migrants.33

PRC

refusal to acknowledge the status of North Korean refugees or to accept their applications
for asylum has made it difficult for observers to estimate their numbers, with estimatesranging from 10,000 (according to official Chinese reports) to 400,000 (according tovarious NGO estimates).34

A reasonable estimate appears to be between 50,000 and

100,000 North Koreans living in China, primarily in Yanbian Province, bordering
DPRK.35
Democratic People’s Republic of Korea
Little information is available regarding the refugee population of DPRK.36
The country is not a party to any of the international conventions regarding refugees andappears to have no policies or legislation protecting the rights of refugees and asylum
seekers.

Its closed regime and reportedly harsh socio-political environment make itunlikely that DPRK would be a destination for refugees from other nations. As noted
above, it is suspected that a large number of DPRK citizens continue to cross into PRC’s
Yanbian region, although it is unclear whether their purpose is to seek out better
economic opportunity or to escape the severe living conditions of DPRK.

Freedom of

movement in DPRK is highly restricted, and it is likely that any attempt to seek asylum inneighboring China or Russia would meet with harsh punishment by the DPRK
government.

However, DPRK does issue short-term exit visas for North Koreans withfamily on the Chinese side of the border or for small-scale trade with Chinese border15

communities. The Department of State’s report on human rights practices in DPRK
provides some indication that the DPRK government has taken measures to distinguishbetween illegal labor migration and outright defection.37

Japan
Japan is signatory to both the 1951 Convention and the 1967 Protocol.

It

received a very small number of refugees with respect to the rest of Northeast Asia,
totaling 2,266 persons in 2003, according to one report. Another report estimates ahigher number, about 7,900 refugees. Most of these refugees were reportedly fromSoutheast Asian nations such as Vietnam, Myanmar, Cambodia, and Laos, although
Japan received 22 official asylum applications from Chinese citizens in 2003. Japan is
not a major source of refugees.38

On the whole, Japan has well-established legal andprocedural frameworks for managing refugee issues. The Japanese government
supports family reunification of refugees and does not detain asylum seekers without
legal status.

Poor training, however, seems to have led to incidences of UNHCR-

recognized refugees being detained or asylum seekers being rejected. Japan’s many
complex immigration rules often make the asylum application process unnecessarily
complicated and drawn out.39

Mongolia
The U.S. State Department reports that Mongolia is not a party to the 1951
Convention or the 1967 Protocol. The Mongolian government has not established laws
or rules for granting refugee status.

Nevertheless, Mongolia did adhere to some bareminimum practices with regards to refugees, including non-refoulement.

Asylumrequests were rarely granted. The Mongolia Government has embarked upon minimal
cooperation with UNHCR. No data are available on the refugee population of Mongolia,
although there are reports of small numbers of North Koreans residing in Mongolia.
Like China, the Mongolian government seems to prefer classifying these individuals as―economic migrants.‖40

Republic of Korea

16

South Korea is a signatory to both the 1951 Convention and the 1967 Protocol.
Its refugee population in 2004 was minimal (44 individuals) according to one report.41
A different report speculates that 1,670 refugees live in South Korea, most of whom arefrom North Korea.42

Most asylum applicants were from Myanmar. The primarydestinations for refugees from ROK were Germany and Canada.43

ROK policy towards

refugees is rather restrictive. Filing and receiving asylum status is complicated.
UNHCR assistance has helped improve some of the asylum procedures. The main
exception to South Korea’s relatively rigid stance towards refugees is the case of North
Koreans. ROK law affords refugees from DPRK citizen status upon defection from theNorth.

South Korea also facilitates the processing of North Koreans from third

countries.44

Russian Federation
Russia is party to both the 1951 Convention and the 1967 Protocol.

For most of

the 1990s, Russia was home to large numbers of refugees, partly due to the massive
upheavals following the disintegration of the Soviet Union and partly due to armed
conflict in border regions of the Caucasus, primarily Chechnya. By 2004, Russia’s
official refugee population had declined to 1,852 persons. Much of this decrease isaccounted for by naturalization of refugees.45

Major refugee origin countries wereformer Soviet republics; Northeast Asian nations were not major sources of refugee flows
to Russia.46

The U.S. Committee for Refugees and Immigrants reports a far greaternumber of refugees living in Russia: 150,000 refugees and asylum seekers, most of themfrom Afghanistan and Georgia.47

Russia is also a significant refugee sending nation,

primarily to Western countries. According to UNHCR, the number of Russian refugees
has grown from 28,314 persons in 1999 to 107,903 in 2004.48
Refugees estimates this number to be 50,700 persons.49

The U.S. Committee for

Despite its accession to theconventions on refugees, Russia’s handling of refugees and asylum seekers has been
problematic. Violations of these protocols include frequent refoulement of refugees (incontradiction to the existing Law on Refugees), refusal to grant asylum, and refusal to
grant legal entry to the country for rejected asylum seekers. Authorities would often noteven accept asylum applications or simply discard them. Many refugees from specific17ethnic groups have been victims of xenophobic attacks with little action by law
enforcement authorities.

Police often use the unsettled status of refugees asopportunities for extortion, or they simply detain the refugees as illegal migrants.

It washoped that the 2002 Law on Citizenship would clarify some refugee issues, especially for
citizens of former Soviet republics, but the law actually introduced more difficulty into
the citizenship process.50

Human Trafficking
One of the consequences of increased movement of people across borders inNortheast Asia has been a definite rise in human trafficking.

All Northeast Asian

nations are in some way involved in the process of the illegal transport of humans acrossnational borders for commercial sexual exploitation and forced labor. Countries may besenders or receivers of trafficked individuals, or they may be transit points for further
travel to third countries.

Many Northeast Asian countries are simultaneously any

combination of these roles. Moreover, human trafficking processes in Northeast Asia
are very much linked with Southeast Asian and global trafficking flows.51
There are no reliable data on trafficking in the Northeast Asian region, which is to
be expected for an illegal activity that is often associated with organized crime networks.
Some estimates put the global flow of trafficked persons at nearly one million individuals.
If all of Asia accounts for about one-third of this number, then Northeast Asia’s share ofhuman trafficking flows is naturally less than 300,000.52

Again, geographic boundaries

become blurred when discussing human trafficking flows since many links exist between
the region and other parts of the world.

Table 2 shows human trafficking linkages inNortheast Asia.
The primary characteristics of human trafficking are similar across the region.
The quest for economic opportunity is one factor.

Many victims of trafficking aredeceived by traffickers, who lure the former with promises of legitimate employment inforeign countries.

In many cases, victims have even paid large sums of money to their

exploiters as a service fee.53

The combination of restrictive migration policies and legal

loopholes also facilitates the spread of trafficking.

For example, Japan’s ―entertainer‖

visa system was long used for bringing in woman for commercial sexual exploitation,18

although recent regulatory changes may improve the situation.54

Another characteristic

is the increasing feminization of international migration in Asia.55

Many of these

women are legitimate economic migrants working as domestic help or healthcare
providers.56

Others are women deceived by devious criminal schemes.

Womenmigrants tend to be more vulnerable to trafficking, especially women in marginalized
positions (divorced, widowed, etc.).57

It should be remembered, however, that

trafficking victims are not exclusively women, nor are they used exclusively for sexual
exploitation.

Men, women and children throughout Asia are trafficked for exploitativelabor, too, often bordering on involuntary servitude.58

Table 2 Human Trafficking Linkages in Northeast Asia
NEA Country
Sending to:
Receiving from:Transit Point
China
Japan, ROK, Russia,
DPRK
Yes
Singapore, Sri Lanka,
Taiwan, Rest of World
DPRK
China, Russia--Japan-China, Philippines,
Russia, Taiwan, Thailand
Mongolia
China, ROK--ROKJapan, United States,
China, Philippines,
Yes
CanadaRussia, Thailand
RussiaChina, Japan, Mongolia,
China, DPRK
Yes
ROK, Gulf States,
Macao, Sri Lanka
Sources: Piyasiri Wickramasekera, Asian Labour Migration: Issues and Challenges in an Era of
Globalization, International Migration Programme, International Labour Office No. 57, Geneva:
International Labour Office, 2002; Demetrious Papademetriou and Sarah Margon, "International Migration
Trends and Patterns in Asian and Oceania," in Irena Omelaniuk, ed., World Migration 2005: Costs andBenefits of International Migration, Geneva: International Organization for Migration, 2005; U.S.
Department of State, Trafficking in Persons Report, Office of the Under Secretary for Global Affairs No.
11252, Washington, D.C.: U.S. Department of State, June 2005.

North Koreans in Northeast Asia: Refugees or Economic Migrants?
The status of North Korean migrants in Northeast Asia has become a topic ofheated debate in the region.

As noted earlier, the Chinese government is reluctant toclassify North Koreans in China as anything other than economic migrants.59

Beijing's

refusal to acknowledge the status of North Korean refugees or to accept their applications
for asylum has made it difficult for observers to estimate their numbers.

Official

Chinese government reports state there are no more than 10,000 North Koreans in China.

19

Certain NGOs claim figures of more than 300,000 persons. Seymour reports that areasonable estimate is between 50,000 and 100,000 North Koreans living in China,
primarily in Yanbian Province, bordering DPRK.60
Because of their uncertain status in China, North Korean migrants are highly
vulnerable to human rights violations.61 Likewise, China’s insistence that these North
Koreans are just economic migrants means that those who are seeking refuge are usuallyrefused the right of transit to a third country or, worse, are refouled to DPRK. The
problem of North Koreans in China is exacerbated by the Chinese government’s refusal
to fulfill its obligations under various international conventions to which it is a signatory.
Thus, the government continues to deny the UNHCR’s requests to monitor the situationin Northeast China.62
In recent years, some North Koreans with the clear intention to defect have foundtheir way to South Korean or third-country diplomatic missions in China. Other
countries tend to recognize these individuals as legitimate asylum seekers and areprepared to assist with relocation to South Korea.

(Russia has historically been lessaccommodating to North Korean defectors.) As mentioned earlier, the ROK offers all
Koreans from the DPRK full South Korean citizenship.

Since the end of the Korean

War, an estimated 6,000 North Korean "refugees" have arrived in South Korea, including
the 460 North Korean defectors airlifted from Vietnam to Seoul in 2004.63

As a resultof several widely publicized defections, the Chinese government seems to be trying to
make this method of defection nearly impossible by increase the police guard aroundforeign consular offices.64
The consequences of refoulement can be severe.

If classified as ―illegal

economic migration,‖ the sentence might be three years of hard labor.

Leaving thecountry for clearly politically motivated reasons may merit at least seven years or,perhaps, even execution.65

The difficult conditions of DPRK prisons and labor camps

are a further example of human rights violations that an emigrant or refugee from North
Korea may have to endure.

Relevant Human Rights Principles and Norms

20

In this section, we will introduce the most important principles and norms underinternational customary and conventional law that pertain to the rights andresponsibilities of states, including sending, transit, and destination countries, and to thebasic rights of migrants, both as citizens of their respective countries and as non-citizens
in receiving and transit countries. We will also point out the most notable limitations of
the existing legal regimes in this field.

State Authority and Responsibility
International law affirms the authority of states to regulate the movement of
persons across their borders. States have wide discretion in developing admission,residence, expulsion, and naturalization policies for non-citizens.66

They have authority

to manage admissions and residence of foreign nationals in their territory.

They canexercise authority against persons and organizations that seek illegal transportation of
migrants.67

States have authority to decide who its nationals are. There is nointernational law requiring states to grant citizenship to the children of immigrants,
although international law urges states to take steps to avoid statelessness.68

Statespossess authority to limit and control migration on national security grounds, and states
expel and exclude persons believed to pose a threat to their national security. 69

Forexample, in the wake of the September 11, 2001 attacks in the United States, the UN
Security Council adopted Resolution 1373, calling on states to "[p]revent the movementof terrorists or terrorist groups by effective border controls and controls on issuance ofidentity papers and travel documents, and through measures for preventing counterfeiting,forgery or fraudulent use of identity papers and travel documents."70
Under customary and conventional international law, states have a set of
responsibilities regarding the cross-border movement of people.

At the mostfundamental level, states must observe the principle, pacta sunt servanda, that treaties
freely concluded and in force between states are to be respected and implemented.71

Itis also established that under international law, treaty obligations between parties takeprecedence over conflicting provisions of domestic law, although it remains a question ofmunicipal law whether international law will be given priority in domestic courts overinconsistent domestic law.72

21

States are obligated to comply with commitments in human rights conventions
that they are parties to as well as with customary international law norms.

Most humanrights are guaranteed irrespective of an individual's immigration status or nationality. 73
Among the international legal principles with direct relevance to the cross-border
movement of people, the most basic are: non-discrimination, general protections
regarding due process, detention, and access to courts, specific protections pertaining toimmigration proceedings, and norms relating to family unity.
The principle of non-refoulement, or prohibition against the return of persons toparticular kinds of harm, is enshrined in the 1951 Convention Relating to the Status of
Refugees, the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War.74

Another principle, which is widely recognizedunder customary international law, relates to the duty of states to accept the return of theirnationals from other states, although this rule is not found in any multilateralconvention.75

States are also bound by the requirement under the 1963 Convention on

Consular Relations to inform a non-citizen whom they arrest or detain of his/her right tocontact consular officials of his/her home state and to communicate such a request to
consular officials "without delay." Consular officials have the right "to visit a nationalof the sending state who is in prison, custody, or detention, to converse and correspondwith him, and to arrange for his legal representation."76

Individual Persons' Rights
Among the rights established for individual persons that relate to internationalmigration is the freedom to leave any country and to return to one's own country.77
However, this right is not absolute. States may, for example, prevent departure to
enforce criminal sanctions, the payment of taxes, military service requirements, andattendance at legal proceedings.78

Even though individual persons have the right toleave any country, including their own, they cannot exercise this right unless there is astate willing to admit them.

In this sense, this right is "incomplete".79

This obviously

creates difficulties for refugees and asylum seekers who seek safety outside theircountries of origin.

Unauthorized departure and entry may and do result from this22

fact.80

The right to leave applies to both nationals and non-nationals of the state ofresidence, but the right to return may be limited to citizens and nationals of a state or topersons stripped of their nationality in violation of international law, as well as to settled
immigrants.

There are fewer restrictions on one's right to return to his/her country thanon his/her right to depart.81

It should be added that even though a state has the right todecide whether a migrant entered or remained in its territory illegally, the fact of illegal
entry or stay does not nullify the state's duty under international law to protect the
migrant's basic rights without discrimination, for example against torture, degrading
treatment, or forced labor.82

Forced Migration
International law does not recognize a general category of "forced" or"involuntary" migrant, but there are important and well-established norms that relate tocertain classes of border-crossing persons. For example, a fairly elaborate regime exists
for the international protection of refugees and for victims of torture.83

Interstateagreements and arrangements have extended protection to persons who cross national
borders to escape from other forms of inhumane treatment, civil war or disorder, as wellas natural disasters.

In addition, human rights principles condemn many of the practices

that force persons to flee.84
Over 140 states have ratified the 1951 Convention relating to the Status of
Refugees or its 1967 Protocol.

These instruments have established states' obligation to

grant recognized refugees a range of benefits and opportunities afforded to immigrants
and nationals.

Article 33 provides for the principle of non-refoulement, i.e., prohibition

against the return of a refugee to a country where his/her life or freedom would bethreatened.85

The regime of "surrogate protection" obligates states parties to theconvention to protect persons forced to flee their home state who cannot rely on that state
to ensure their fundamental rights and interests.86

The convention also establishes non-discrimination norms regarding the right to work, social welfare programs, and religious
freedom for legally settled refugees.

It further guarantees the right of access to courtsand freedom of movement and establishes limits on the detention of refugees.87

23

The international regime for refugees has many gaps, some of which apply to
refugee situations in Northeast Asia. One of the gaps is that although the right to seek
asylum is recognized, states are under no obligation to grant asylum or even admit
persons so that they can pursue asylum claims.

Nor is there an established obligation on

the part of a state that creates refugee outflow toward the state that bears the burden of
refugee inflow. Another weakness of the international refugee regime is that states
define the term "refugee" differently and consequently, the application of the 1951
convention is inconsistent from state to state. The UNHCR has authority to issue
guidance on the interpretation of the convention's provisions but cannot impose it on
states parties. Furthermore, some classes of people who are forced to cross international
borders, e.g., victims of civil war or disorder and persons who flee extreme poverty,
famine or other natural disasters, are outside the application of the convention and the1967 protocol. The implementation of the convention has been made inconsistent, aswell, by states adopting various measures to deter unlawful migration, such as visa
requirements, carrier sanctions, and detention policies. These measures hinder asylumseekers' ability to leave their countries of origin or to gain access to procedures forrefugee status determination.

Another obstacle is that norms concerning the duties oftransit states or return of asylum-seekers to such countries are not well established.
Furthermore, the convention does not provide standardized procedures for determining
the status of asylum-seekers.88
We can readily see that the above limitations have important consequences for theprotection of human rights of North Korean "defectors". Despite the fact that China,
South Korea, and Japan are all parties to the 1951 convention, each state deals with theissue of North Korean refugees according to its own interests, including political anddiplomatic considerations.
Conventional and customary international law protects other victims of humanrights abuses from refoulement. For example, the 1984 Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment, commits states parties not
to return a person "where there are substantial grounds for believing that he would be indanger of being subject to torture."89

All Northeast Asian states, except North Korea,

are parties to this convention.

24

The Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking
Protocol), in addition to promoting the suppression of trafficking, is aimed at protecting
and assisting victims of trafficking, "with full respect for their human rights."90

Statesparties are obligated "to take steps to protect the physical safety, privacy, and identity ofvictims, to assist victims in legal proceedings, and to consider implementing measures toprovide for the physical, psychological, and social recovery of victims.

States are also

urged to consider adopting laws or regulations that permit victims to remain in the
territory on a temporary or permanent basis."91

Russia is the only Northeast Asian

country that has ratified the protocol as of March 2005. Japan has developed an action
plan of measures to combat trafficking in persons, adopting the definition of "trafficking
in persons" found in the protocol.92

International law extends similar norms to theprotection of children, who are particularly vulnerable to trafficking.93

Human Rights of Migrants
The non-discrimination norm plays a central role in the protection of migrants’human rights.
treaties.

The norm is enshrined in the major universal and regional human rights

It is also included in the United Nations Charter.94

It applies to immigrants

as well as to citizens. Under the International Covenant on Civil and Political Rights(ICCPR), non-citizens are protected against discrimination "on any ground such as race,color, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status."95

This does not mean that no distinctions can be made between

citizens and non-citizens.96

It is beyond the scope of this paper to delineate theprovisions in international legal instruments regarding such distinctions.97

It merits

mentioning that "the status of the alien (settled immigrant, temporary visitor,
unauthorized migrant) is likely to influence the evaluation of the differential treatment."98
It would be difficult for states to justify policies that deny to non-citizens corecivil rights and political freedoms that are granted to citizens, such as access to courts andfreedom of speech. However, states can legitimately restrict the franchise and political
office holding to citizens without violating the principle of non-discrimination.99
Non-citizens are protected against discrimination based on their alienage withrespect to rights guaranteed for citizens under the International Covenant on Economic,

25

Social, and Cultural Rights (ICESCR), such as the right to work, to an adequate standardof living, to health, and to education.100

A qualification to this rule should be noted.

Developing states are permitted to determine "to what extent they would guarantee theeconomic rights recognized in the present Covenant to non-nationals."101

States’practices indicate widespread limitations on economic and social rights of migrants. 102
Instruments protecting human rights generally apply to citizens and non-citizens
alike.103

Non-citizens are entitled to rights that are absolute or not subject to derogation

or limitation.

They are also entitled to those rights whose denial on the basis of alienage

would never be justifiable. Such rights include but are not limited to the right to life;
prohibitions against torture and cruel, inhuman, and degrading treatment or punishment;rights guaranteed in the criminal process; freedom of thought, conscience, and religion;
the right to leave a country; the prohibition on retroactive criminal penalties; and the rightto marry.104
There are other categories of rights for which immigration status may be alegitimate consideration.105

Detention of immigrants in immigration proceedings isjustified, as is deportation under some circumstances of an immigrant who has family
members in the state of settlement.

States may, on national security or ordre publicgrounds, limit some rights established in conventions for both citizens and non-citizens.
Furthermore, alienage itself may be considered in a state’s decision to limit the exercise
of immigrants’ rights if such limitation is for legitimate state purpose and is proportional
to the end being sought by the state.

For example, in the wake of the terrorist bombingsin London in 2005, the British government announced that it would deport non-British
citizens who directly or indirectly advocated acts of terrorism. Certain rights are
expressly reserved for citizens. Article 25 of ICCPR states, ―[e]very citizen‖ shall havethe right to take part in the conduct of public affairs, vote and be elected, and to haveaccess to public service.

The right to freedom of movement, which is secured by Article

12(1) of ICCPR, is guaranteed only for citizens and lawfully present migrants.

Somerights apply only to non-citizens, such as those pertaining to immigration proceedings.
Some human rights treaties state that their protections do not apply to certain differential
treatment based on citizenship status.106

26

Family unity or unification is a widely recognized right, but its exercise may
entail some difficulties. Under the Convention on the Rights of the Child, a child may
be separated from his/her family only when competent authorities subject to judicial
review determine that such separation is necessary for the best interests of the child.107
The right to family unity, which is guaranteed for both citizens and non-citizens, entitles
immigrants to the right to marry and form and raise a family.108

Most states permit theentry of immediate family members to join an immigrant who is lawfully resident in thestate. However, some immigration policies pose difficult challenges to family unity.
For example, admissions policies frequently cause long delays in the entry of closefamily members or deny entry altogether and expulsion measures may also threatenfamily unity.

Moreover, the definition of family adopted by the receiving state may

differ from that used by the immigrant family.109
Family unification across national borders has been suggested to be a necessary
corollary to the right of family unity, but it is not yet a firmly established norm underinternational law and state practices vary.

The Convention on the Rights of the Child

states that ―family unification shall be dealt with by States Parties in a positive, humane,and expeditious manner.‖110

This provision leaves it unclear whether the receiving statemust admit family members of settled immigrants; it is possible for family members to beunited in another state, e.g., the state of origin.111

Nor has the right to family unity been

firmly established in expulsion cases; an expelled immigrant may unite with his/herfamily in a state other than the expelling state.112

According to the Human Rights

Committee, factors to be considered in expulsion cases include the length of residence,
the age of the children, and the impact of expulsion of a parent, the conduct of the parent,
and the state’s interests in protecting public safety and promoting compliance withimmigration laws.113

The Convention on the Rights of the Child appears to apply astricter standard, permitting family separation only when it is in the best interests of thechild.114
With respect to immigration proceedings, the non-discrimination principle underinternational law renders indefensible immigration policies based on race, and genderbased distinctions would require special justification.115

The due process requirement

under international law applies to immigration proceedings. Therefore, for example, the27

ICCPR does not permit states parties to expel a non-citizen who is lawfully in theirterritory except in pursuing a legally rendered decision and must, without compelling
reasons of national security, permit the individual to submit the reasons why he/sheshould not be expelled. States parties are also required to allow for a review by andlegal representation of the non-national before the competent authority.116

Thisprovision applies only to non-citizens who are lawfully in the receiving state andpresumably does not apply to undocumented immigrants, whose legal status may need tobe legally contested.

In view of this, the Human Rights Committee has stated that ―if

the legality of an alien’s entry or stay is in dispute, any decision of this point leading to
his expulsion or deportation ought to be taken in accordance with Article 13.‖117
The detention of immigrants in the course of immigration proceedings – an issueof concern among human rights advocates in Northeast Asia – is also subject to humanrights norms that prohibit ―arbitrary arrest or detention.‖ The ICCPR provides that―[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to takeproceedings before a court, in order that the court may decide without delay on thelawfulness of his detention and order his release if detention is not lawful.‖118
The issues of integration and assimilation of immigrants are of increasing
relevance and importance in Northeast Asian countries. Under international law today,
immigrants have no duty to naturalize; nor do they have an internationally recognizedright to integrate in the host state and to be afforded the means to do so.119

However,the non-discrimination principle under international law prohibits ―discrimination against
non-citizens that hinders material integration and sends a stigmatizing message toimmigrants that they do not belong.‖120
Citizenship (nationality) and naturalization are at the heart of the debate on the
integration of migrants.

Even though it is possible for migrants to retain their foreign

citizenship and still become an integral part of the society in which they reside,
citizenship may be a very important issue for migrants because its acquisition isunderstood to afford them the full range of domestic rights recognized by the state ofresidence. The Universal Declaration on Human Rights (UDHR) states that ―[e]veryone
has the right to a nationality,‖ and that no one shall be arbitrarily deprived of his
nationality or denied the right to change his nationality. We are reminded, however,28

that ―the UDHR does not by itself establish legally binding norms, although many of its
guarantees may have attained the status of customary international law.‖121

In order toprevent statelessness, the 1961 Convention on the Reduction of Statelessness requires
states to grant nationality to persons born in their territories who would otherwise bestateless and not deprive a person of his/her nationality if it would render him stateless.122
Furthermore, the Convention relating to the Status of Refugees provides that states ―shallas far as possible facilitate the assimilation and naturalization of refugees.‖123
There are no international conventions significantly regulating acquisition of
citizenship and under customary international law, states are generally free to decide on
whom to confer citizenship, with some states adopting the jus soli rule (citizenship basedon birth within national territories) and others jus sanguinis (citizenship based on descent)in determining citizenship.124

Non-discrimination, requirements of procedural fairness,and other human rights norms prohibit states from using race or gender in denying or
terminating citizenship.125

Multiple nationality was previously seen as an irritant ininternational relations and thus discouraged, but it is increasingly accepted by states
which recognize that persons can maintain links to more than one state without causingmajor interstate conflicts.126

Obviously, however, interstate discussion and cooperationis necessary to sort out rights and obligations for persons with multiple nationality.127
Multiple nationality is very rare among the citizens of Northeast Asian countries, where
citizenship, nationality, identity, and political loyalty are generally understood to be
inseparable.

Any developments that may weaken political control by the state over its

citizens are likely to be seen as a threat to the premise of political loyalty based onnationality. For example, China is concerned that South Korea’s encouragement of
Korean Chinese to come to South Korea for work may lead to eventual assimilation of
the Chinese citizens of Korean ethnicity and, hence, loss of political loyalty to Beijing. 128
In May 2005, the South Korean national assembly passed legislation to amend the law on
dual citizenship, prohibiting male Koreans born abroad and holding dual citizenship fromabandoning their Korean citizenship unless they first do their compulsory military
service.129
Assimilation is an important issue for both members of the host society and theimmigrants themselves.

―Assimilation‖ generally means acquisition by immigrants of29

prevailing values of the host society, its language, and its dominant cultural practices.
Cultural assimilation is a complex issue as it relates to the tension between two basic
principles, human rights (the individual’s freedoms of religion, association, expression,
marriage, etc.) on one hand and, on the other, the need of every society to maintaincohesion on the basis of commonly accepted values. Although international law does
not directly address these issues, its protection of individual rights necessarily implies
some degree of tolerance of difference. Thus, ICCPR provides for the right of membersof an ethnic, religious, or linguistic minority to ―enjoy their own culture, to profess andpractice their own religion, or to use their own language.‖130

States are free to promoteassimilation but cannot compel it, or they would violate the human rights of theimmigrants being forced to assimilate.131

Assimilation is a very sensitive issue in all

Northeast Asian countries, as the example of Korean residents in Japan demonstrates.132

Human Rights of Migrant Workers
According to the ILO, there were an estimated 150 million migrants in the worldin 2002, of whom about 36-42 million were migrant workers and an additional 44-55
million were members of their families.133

The 2004 report by the World Commission

on the Social Dimension of Globalization, noted earlier, decries the absence of uniform
and fair labor standards for workers around the world, including migrant workers.
The rights of migrant workers are a very complex issue. As Fitzpatrick notes,
migrant workers comprise several distinct groups with varying human rights issues,
ranging from multinational executives, to legally admitted skilled and unskilled workers,
and to irregular migrants.

In addition, the rights of irregular migrants are particularly

controversial, as are issues of family unity.134

The migrant workers conventions also

deal with the issue of illegal migration. However, states are generally and chronicallyreluctant to commit themselves to legally binding, multilateral regimes that regulateinternational labor migration and protect the rights of migrant workers.135
Furthermore, the nature of international labor migration has changed in somesignificant ways since the adoption of the ICMW. For example, the role of states in the
recruitment of migrant labor has declined, giving a greater role to commercial agents andintermediaries.

Another visible change in recent years has been the feminization of30

migrant labor, with women migrant workers predominant in the sex industry anddomestic work, an area usually outside the protection of labor law. Short-term labor
migration has grown, relative to long-term migration.
considerable growth in irregular migration.

There has also been a136

In 1990, the UN General Assembly adopted the ICMW and the convention went
into force in 2003.

However, as of March 2005, there were only 27 signatories, none ofthem a major receiving state.137

None of the Northeast Asian countries is a party to theconvention. Nor are they parties to key ILO conventions, including the Convention
concerning Migration for Employment (No. 97) of 1949 and the Convention concerning
Migration in Abusive Conditions and the Promotion of Equality in Opportunity andTreatment of Migrant Workers (No. 143) of 1975.
Part III of the ICMW guarantees rights to all migrant workers and their families.
It reaffirms many fundamental rights, provides for national treatment in matters such as
equal work conditions, trade union rights, social security, and basic education.

It dealswith the preservation of cultural identity, repatriation of savings, and other matters ofspecial concern to migrants.

Part IV establishes more extensive guarantees for migrants

in a documented or regular situation, in matters ranging from freedom of movement toaccess to employment.
The ICMS explicitly refers to nationality as a prohibited basis of distinction.138
ILO Convention No. 97 covers the conditions governing the orderly recruitment of
migrant workers, articulates the principle of their equal treatment to national workers
regarding working conditions, trade union membership and enjoyment of the benefits ofcollective bargaining, accommodation, social security, employment taxes, and legal
proceedings relating to matters outlined in the convention.139

ILO Convention No. 143

promotes equality in broader areas such as social security, access to employment, tradeunion freedoms, and cultural rights.140

It devotes a whole section to irregular migrationand to interstate collaborative measures considered necessary to prevent it.

It alsoobligates states to respect the basic human rights of all migrant workers, confirming theapplicability of this duty to irregular migrant workers.141
Major international trade agreements include limited provisions supporting the
temporary movement of persons between trading partners. The General Agreement on

31

Trade in Services (GATS), as part of the World Trade Organization (WTO) Agreement,
encourages governments to commit to opening markets to foreign service-providers.
GATS Article 1 recognizes, inter alia, the movement of natural persons to provide
services in a foreign country. However, this recognition applies only to people whocross a border temporarily and "temporary" is understood to mean periods ranging from a
few weeks to three to five years.142
Generally, skilled workers who fill professional jobs in the formal sector haverelatively few human rights problems.

Unskilled workers, in contrast, are often

employed in the informal sector and many of them experience human rights abuses.
Particularly vulnerable are individuals who are trafficked and forced into the sex industry,
as well as those who are smuggled across national borders and exploited in the countriesof destination. Even within their countries of origin, individuals may suffer violationsof their economic and social rights to health care, education, and adequate housing.
Their civil and political rights may also be violated. Such violations then become "pushfactors" encouraging migration.143

Some women are at greater risk of trafficking

because of illiteracy, gender discrimination, violence against women and girls, and low
economic status of women and girls.

Irregular migrant workers are also vulnerable toabuse and exploitation by employers, migration agents, and criminal organizations.144

Northeast Asian Countries and International Human Rights Law
An important measure of a state's commitment to the protection of human rightsof migrants is whether it is a party to the core international human rights conventions andinternational treaties pertaining to migration. Table 3 lists such treaties and indicates theratification status of the Northeast Asian states.

Most states in the region are parties tothe core international human rights treaties. The notable exceptions are China, which
has not joined the International Convention on Civil and Political Rights, and North
Korea, which is not a party to the International Convention on the Elimination of All
Forms of Racial Discrimination or the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Russia has ratified the Protocol toPrevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
Japan and South Korea have signed but not yet ratified the protocol. However, Japan32

revised its penal code and immigration law in June 2005 to criminalize humantrafficking.145

China, North Korea, and Mongolia have not signed the protocol.

Table 3 International Human Rights Treaties and States Parties in Northeast Asia (As of June 3, 2005)
ICERD
China
Japan
ROK
DPRK
Mongolia
RussiaaaaraViennaConvention
a
r
r
a
a
r

ICCPR

ICESCR

CEDAW

CAT

CRC

r
a
a
r
r

r
r
a
a
r
r

r
r
r
a
r
r

r
a
a
a
a

r
r
r
a
r
r

RefugeeConventionaaaRefugee
Protocolaaa

ILO C97

ILO C143

ICMW

Trafficking
Protocol

r

China
Japan
ROK
DPRK
Mongolia
RussiaaaNotes:ICERD: UN International Convention on the Elimination of All Forms of Racial Discrimination (adopted in 1965; entered into
force in 1969; ratified by 170 as of March 1, 2005)
ICCPR: UN International Convention on Civil and Political Rights (adopted in 1966; entered into force in 1976; ratified by 154
states as of March 1, 2005)
ICESCR: UN International Covenant on Economic, Social, and Cultural Rights (adopted in 1966; entered into force in 1976;
ratified by 151 states as of March 1, 2005)
CEDAW: UN Convention on the Elimination of All Forms of Discrimination against Women (adopted in 1981; not yet in force;
ratified by 179 states as of March 1, 2005)
CAT: UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted in 1987; not yet
in force; ratified by 139 states as of March 1, 2005)
CRC: UN Convention on the Rights of the Child (adopted in 1989; went into force in 1990; ratified by 192 states as of March 1,
2005)
Trafficking Protocol: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime (adopted in 2000; entered into force in
2003; ratified by 87 states as of September 4, 2005)
Vienna Convention: Vienna Convention on Consular Relations (adopted in 1963; entered into force in 1967; ratified by 166 states
as of March 1, 2005)
Refugee Convention: UN Convention relating to the Status of Refugees (applied to refugee situations before 1951; adopted in 1950;
entered into force in 1954; ratified by 142 states as of March 1, 2005)
Refugee Protocol: UN Protocol relating to the Status of Refugees (applied to refugee situations after 1951; adopted in 1967; enteredinto force in 1967; ratified by 142 states as of March 1, 2005)
ILO C97: ILO Convention concerning Migration for Employment (Convention No. 97; adopted in 1949; entered into force in 1952;
ratified by 42 states)
ILO C143: ILO Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity andTreatment of Migrant Workers (Convention No. 143; adopted in 1975; entered into force in 1978; ratified by 18 states as ofMarch 1, 2005)
ICMW: UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(adopted in 1990; entered into force in 2003; ratified by 27 states as of March 1, 2005)
Ratification (r); accession (a); succession (s)Sources: Office of the United Nations High Commissioner for Human Rights, "Status of Ratifications of the Principal International
Human Rights Treaties." <http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf> (accessed August 31, 2005); United
Nations, "United Nations Treaty Collection," <http://untreaty.un.org/sample/EnglishInternetBible/bible.asp> (accessed August 31,
2005); United Nations Office on Drugs and Crime, <http://www.unodc.org/unodc/en/crime_cicp_signatures_trafficking.html>(accessed September 3, 2005); International Labor Organization, "Database on International Labor Standards,"<http://www.ilo.org/ilolex/english/newratframeE.htm> (accessed August 31, 2005); Stefanie Grant, "Migrants' Human Rights: From
the Margins to the Mainstream," Migration Policy Institute, Washington, D.C., March 21, 2005,<http://www.migrationinformation.org/Feature/print.cfm?ID=291> (accessed August 6, 2005).

33

As noted earlier, none of the Northeast Asian states has joined the two ILO
conventions related to migrant workers or the ICMW. This testifies to the general lackof commitment on the part Northeast Asian states to legally binding rules concerning theprotection of migrant workers’ rights.

A UNESCO-sponsored study in 2003 examined

the reasons behind Asia-Pacific countries' unwillingness to sign the ICMW. The casestudy of seven countries (two sending countries: Bangladesh, Indonesia; five receiving
countries: Japan, Korea, Malaysia, New Zealand, and Singapore) revealed two major
obstacles. First, sending countries feared that ratification would result in a loss of labormarkets in destination countries to their non-ratifying competitors. Second, receiving
countries were reluctant to join the ICMW because of the protections the convention
would give to irregular migrants and the perception that it would require the admission of
migrant workers' family members.146

Human Rights Problems of Migrants in Northeast Asia
It is beyond the scope of this paper to provide a comprehensive survey of the stateof human rights of international migrants in Northeast Asia. Here we will review themost commonly observed problems and needs.

Our discussion is aided by a report fromthe regional hearing for Asia and the Pacific organized by the GCIM in May 2004.147
Also helpful is the 2003 IOM report "Labour Migration in Asia: Trends, Challenges, andPolicy Responses in Countries of Origin."148
Participants in the GCIM hearing described as "benign neglect" the situation of
migrant workers in many parts of Asia and the Pacific who work in deregulated sectors.
The report from the hearing notes that the protection of migrants' rights in the region is"tenuous".149

Participants discussed the need for comprehensive national frameworks toaddress migration issues based on appropriate legislation and structures, combined with astronger sense of social responsibility among all stakeholders.

In view of thefeminization of migration in the region, the participants also discussed the need forappropriate policies to prevent the disempowerment and exploitation of women as aresult of migration of women.150
Participants also discussed problems associated with irregular migration,
particularly in the context of return and readmission, trafficking and smuggling in34

humans, and the asylum-migration nexus. They noted that the cross-border movementof people without proper authorization undercut countries' ability to manage their borders.
They called for a balance between enforcement and openness and emphasized theimportance of combating the activities of illegal employers, recruitment agencies
involved in illegal activity, and transnational organized crime groups. Participants also
noted that victims of trafficking and legitimate asylum-seekers are often treated as
criminals despite their heightened vulnerability and the special protections afforded tothem under international law. They were also critical of the way employers took
advantage of the illegal status of many migrants as cheap labor. They called for
improved inter-ministerial coordination at the national level and cooperation between andwithin countries. They also noted the importance of regional fora, in particular the Bali
Process, which we will discuss below.151

Some participants in the hearing decried theappalling human rights violations their nationals are experiencing, particularly (but notonly) in the Middle East.152
Participants outlined essential elements to ensure human rights protection:
minimum standards based on international law; redress mechanisms in countries of origin
and destination; and representation through trade unions and other ways.

They alsoemphasized the importance of raising migrants' awareness of their rights, discussed
whether irregular migrants should be afforded the same basic rights as legal migrants, andconsidered whether migrants should have the same rights as nationals.153
The IOM report on labor migration in Asia focuses on the sending countries andcorroborates the issues and concerns raised at the GCIM hearing. The report points touneven and incomplete application of legal guarantees and protections in the areas ofaccess to employment, equal treatment in respect of remuneration and wages for
performing the same work, freedom of association and the right to organize, and right tosocial security provisions.154

The report highlights the vulnerability of female workers

employed as domestic workers and entertainers, trafficked persons, and irregular migrant
workers.155

It also bemoans the total lack of ratification of the ILO migrant workers

conventions.156

35

In short, the problems and needs identified for international migration and humanrights in Asia-Pacific range widely and parallel the problems and needs observed
throughout the world.

Regional Approach in Northeast Asia
How may a regional approach contribute to the promotion and protection of thehuman rights of international migrants?
regional approach entail?

What limitations and drawbacks might a

What lessons can we learn from regional frameworks andprocesses developed in other parts of the world?
Recognizing the central role of states in the management of cross-border
movement of people, we must turn ultimately to each state for crafting legislation,
policies, and other instruments in the promotion and protection of the rights of migrants.
National measures must be made consistent with internationally established principles
and norms.

They must also represent the interests of all stakeholders: national agencies(foreign policy, labor, health, social welfare, public safety, child welfare; and law
enforcement); local governments; major employers; labor unions and otherspokespersons for workers' interests; the legal profession; human rights NGOs; women'sorganizations; and the educational community (particularly in view of the impact of
migration on children’s education).
Although bilateral arrangements help the states concerned manage cross-bordermigration and reduce illegal or irregular migration, they are likely to result in uneven andunequal treatment of migrants of different nationalities. Therefore, states must be urged
to develop, as much as practicable, uniform standards for foreign migrants regardless of
their nationality.
The harmonization, i.e., the elimination of discrepancies, between national rules
and practices, can be facilitated through regional policy dialogues. Harmonization must
not result in the lowering of standards toward the least common denominator but rather
encourage the emulation by states with lower standards of higher standards and the bestpractice in the field.

A recent review of various regional consultative migration

processes (RCMPs) has found that regional dialogue processes indeed promote36

convergence in policy and practice in international migration and that regionalization of
dialogue through these processes is generally complementary to international efforts. 157
The 2003 issue of "World Migration" by the International Organization for
Migration (IOM) reaches similar conclusions about the contributions the regional
processes are making.158

The annual report identifies four principles common toregional consultative processes (RCPs): (1) promotion of exchange of information toward
a common understanding of migration issues; (2) protection of the fundamental humanrights of migrants, including the right to non-discrimination; (3) reinforcement of efforts
to prevent and combat irregular migration including smuggling and trafficking; and (4)facilitation of voluntary return as a strategy to reduce irregular migration.159

The reportconcludes with a ten-point plan for successful cooperative approaches in migration
management. These points are relevant to regional dialogue processes in Northeast Asiaand are worth listing.
1. Participants must take ownership of the process.
2. There should be continuity with regularly scheduled meetings.
3. There should be common agreement on priorities.
4. Meetings should be focused on specific issues, with clear and comprehensive
objectives.
5. Issues should be focused on enhancing understanding and regional
cooperation in migration management.
6. The process should begin with and be continuously upheld by a compilationand sharing of reliable and accurate data.
7. Meetings should take place at defined administrative levels – for instance at
strategic policy level or program implementation level or at the technicalexpert level.
8. Participation should be comprehensive – from all relevant ministries, as well
as from relevant intergovernmental and non-governmental organizations
where appropriate.
9. Funding stability should be provided to ensure continuity.
10. A core secretariat is essential to ensuring regularity and continuity.160

37Migration is not a priority issue in the various regional institutions that exist in
Asia-Pacific, including the Association of Southeast Asian Nations (ASEAN) and theAsia Pacific Economic Cooperation (APEC).

In the migration field, there are threemajor regional consultative processes in Asia: (1) Manila Process (1996); (2) InterGovernmental Asia-Pacific Consultations on Refugees, Displaced Persons, and Migrants(APC) (1996); and (3) Bali Ministerial Conference on People Smuggling, Trafficking in
Persons, and Related Transnational Crime (Bali Conference) (2002).
The Manila Process is concerned with combating irregular migration and migranttrafficking, root causes of regular and irregular migration, return, reintegration,
entry/border control, remittances, and migrant rights.

Among the participants in thisprocess are the People's Republic of China, Japan, Republic of Korea, and Hong Kong
SAR of China. APC is focused on irregular migration, asylum, information sharing on
reintegration of refugees and returnees, best practices on issues related to cross-bordermigration management, and common migration and asylum challenges. The Northeast
Asian countries represented in this process are China, Hong Kong SAR of China, Japan,
and South Korea.

Bali Conference deals with migrant smuggling and trafficking,information and intelligence sharing, cooperation in fraudulent document detection,
cooperation on border and visa systems, and return.161

The participants include China,

Japan, and both North and South Korea.
In short, there is some experience in regional consultations in Asia regarding
international migration issues and the experience is growing. However, none of theabove-mentioned processes is focused on Northeast Asia. This is largely because themost serious migration issues in Asia-Pacific involve South and Southeast Asian
migrants and their governments have been compelled to consult with each other inmultilateral fora, while Northeast Asian states have preferred to deal with migration
issues either unilaterally or bilaterally.
Several factors complicate the development of regional dialogue within Northeast
Asia. First, the interests and concerns of the Northeast Asian governments regarding
migration vary widely.

Two states in the region (Japan and South Korea) see

themselves mostly as receiving states; three states (China, Mongolia, and North Korea)

38see themselves primarily as sending states; and one state (Russia) sees itself mainly as areceiving state, at least in the post-Soviet context.
Second, Northeast Asian states have preferred bilateral consultations. This islargely due to the nature of the migration issues within the region.

China and Japan are

increasingly concerned about the negative consequences of illegal and irregular migrationof Chinese citizens to Japan and recognize the need to manage migration from China toJapan. At the same time, they are also making efforts to expand the bilateral flow ofChinese and Japanese citizens for tourism and other short-term purposes.

It appears that

Beijing and Tokyo believe they should deal with these problems unilaterally or bilaterally.
Similarly, China, and Russia have been consulting bilaterally over mutual visits by
Chinese and Russian citizens. The presence of large numbers of Chinese in Russia andthe travel by even larger numbers of Russians to China have not generated any significant
consequences for other countries in Northeast Asia.
The one important migration issue in Northeast Asia that has had clearly
multilateral implications is the defection of unknown numbers of North Koreans to China,
South Korea, Japan, and Mongolia.

Because of the political sensitivity of the issue,

however, the governments of these countries have opted to handle the problem quietly
and through bilateral channels – Beijing with Pyongyang, Mongolia with Pyongyang,
Seoul with Beijing, and Tokyo with Beijing.
Yet another reason why a major push for multilateral consultations overinternational migration in the region is unlikely is that Northeast Asian countries have notdeveloped the habit of multilateral dialogue that we see well developed in Southeast Asia,e.g., the ASEAN, and the ASEAN Regional Forum (ARF). Even though some
Northeast Asian countries participate in ARF and ASEAN Plus Three processes, thosefora address issues that concern either Southeast Asia primarily or the entire East Asian
region.
The fact that migrants in Northeast Asia come from all around the world argues
for a multilateral process that is open not only to Northeast Asian countries but also torepresentatives of other parts of the world.

Extra-regional and inter-regional migration

issues should also be taken up in developing a regional cooperation scheme in Northeast
Asia.162

Cooperation with Southeast Asian partners is particularly important because

39Northeast Asian countries are destination and transit countries for large numbers ofSoutheast Asian migrant workers, as well as women and children trafficked fromSoutheast Asia.163

Participants should also include representatives of internationalorganizations, e.g., the UNHCR, the ILO, the IOM, and the GCIM.

Conclusion
By all accounts the cross-border movement of people in Northeast Asia is boundto grow in the foreseeable future. The demographic changes in the countries of theregion, the labor needs of the economies of the region, and the need to sustain essentialsocial institutions in the region (such as marriage, family, and social welfare) all point toincreased migration throughout Northeast Asia.

This means that the Northeast Asianstates must develop mutually beneficial mechanisms for managing population flows
across their borders.
Migration issues that require national, regional, and international attention are
wide-ranging. They include: national legislation and policy framework thatcomprehensively address the human rights of migrants; the feminization of migration;
migrant women's health and reproductive rights; migrants' children and their education;
irregular migration, return and readmission; trafficking and smuggling in humans;
domestic workers; refugees; asylum-seekers; law enforcement; detention; deportation;illegal employment; illegal labor recruitment; transnational organized crime groups; thesex industry and other informal sectors; work conditions and benefits; racism andxenophobia; and multiple citizenship.
Most of the principles and norms that should guide Northeast Asian countries'
efforts to address these issues are well established under conventional and customaryinternational law. Some of those principles and norms are being further refined and newones are slowly emerging through the global process of regime building.
In addressing migration and human rights issues of common concern to theNortheast Asian countries, regional policy dialogue should be promoted.

Regional

discussions will be helpful in developing a common language for discussion, a common
understanding of the issues involved, a shared concern for the human rights and welfare
of individual citizens, and a sense of common goal in promoting and protecting human40rights.

There are already plenty of examples of successful regional dialogue around theworld, including within Asia-Pacific.

However, for the reasons noted in the preceding

discussion, major initiatives for multilateral consultations involving just Northeast Asian
countries are neither likely nor necessarily desirable.

41

Notes1

Monette Zard, "Human Rights Strengthen Migration Policy Framework," Migration Policy Institute,
Washington, D.C., March 1, 2005, <http://www.migrationinformation.org/Feature/print.cfm?ID=295>(accessed August 8, 2005).
2
Stefanie Grant, "Migrants' Human Rights: From the Margins to the Mainstream," Migration Policy
Institute, Washington, D.C., March 1, 2005,<http://www.migrationinformation.org/Feature/print.cfm?ID=291> (accessed August 6, 2005).
3
Ibid.
4
Ibid.
5
"A Fair Globalization: Creating Opportunities for All," World Commission on the Social Dimension of
Globalization, International Labor Office, Geneva, 2004; cited in "World Commission on the Social
Dimension of Globalization: Globalization Can and Must Change," World of Work Magazine, No. 50,<http://www.ilo.org/public/english/bureau/inf/magazine/50/wcsdg.htm> (accessed August 17, 2005).
6
Arthur Haupt and Thomas T. Kane, Population Bureau's Population Handbook, 1978, Washington, D.C.:
Population Reference Bureau, 2001, p. 35.
7Tsuneo Akaha and Anna Vassilieva, "Introduction: Crossing National Borders," in Akaha and Vassilieva,
eds., Crossing National Borders: Human Migration Issues in Northeast Asia, Tokyo, New York, and Paris:
United Nations University Press, 2005 (forthcoming), pp. 1-7.
8Maurice D. Van Arsdol et al., "Population Trends and Migration Patterns in Northeast Asia," in Akaha
and Vassilieva, p. 20.
9
Ibid.
10
Demetrious Papademetriou and Sarah Margon, "International Migration Trends and Patterns in Asia andOceania," in Irena Omelaniuk, ed., World Migration 2005: Costs and Benefits of International Migration,
Geneva: International Organization for Migration, 2005, p. 104.
11
"World Migration 2005," in Irena Omelaniuk, ed., World Migration 2005: Costs and Benefits ofInternational Migration, IOM World Migration Report Series, Vol. 3, Geneva: International Organization
for Migration, 2005, p. 390.
12
There were an estimated 207,000 foreigners illegally resident in Japan in 2004. Japan Times, March 29,
2005, <http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20050329b1.htm> (accessed March 29, 2005).
The comparable figure for Korea was 188,000. Bae Keun-min, "Crimes by Foreigners Jump 48% in
2004," The Korea Times, February 10, 2005.
13
World Bank, World Development Indicators, <http://devdata.worldbank.org/> (accessed August 18,2005).
14
These figures were released by the Economic Development and Trade Ministry. RIA Novosti, August17, 2005.
15
International Labor Organization, International Labor Migration Database, <http://www.keyflex.com/ilm/english/ilmstat/table13.asp> (accessed August 19, 2005).
16
International Migration, 2005, Russian Federation Federal State Statistics Service,<http://www.gks.ru/bgd/regl/b05_12/IswPrx.dll/Stg/d000/05-09.htm> (accessed August 19, 2005).
17
International Labor Organization, International Labor Migration Database.
18
Papademetriou and Margon, p. 390.
19
International Labor Organization, International Labor Migration Database, op. cit.
20
Papademetriou and Margon, p. 108.
21
"World Migration 2005," p. 390.
22
"No. of Foreign Residents in Japan Hits Record for 36 th Straight Year," Japan Economic Newswire, June17, 2005.
23
Papademetriou and Margon, p. 122.
24
Ibid., pp. 125-26.
25
Ibid., p. 106.
26
Yomiuri Shimbun, July 5, 2005, <http://www.yomiuri.co.jp/world/news/20050704i217.htm> (accessed
July 5, 2005).
27
United Nations High Commissioner for Refugees, 2004 Global Refugee Trends, Geneva: UNHCR, 17
June 2005, p. 2.

42

28

World Bank, World Development Indicators, <http://devdata.worldbank.org> (accessed August 18,2005).
29
United Nations High Commissioner for Refugees, 2004 Global Refugee Trends.
30
Authors’ calculations.
31
World Development Indicators; UNHCR, 2004 Global Refugee Trends.
32
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, Geneva: UNHCR,
2004, pp. 110-111.
33
James D. Seymour, China: Background Paper on the Situation of North Koreans in China, United
Nations High Commissioner for Refugees, Protection Information Section, London: Writenet, January
2005, p. 11.
34
Shin-wha Lee, Promoting Human Security: Ethical, Normative, and Educational Frameworks in East
Asia, Seoul: Korean National Commission for UNESCO, 2004, p. 59.
35
Seymour, pp. 15-16.
36
Ibid.
37
"Korea, Democratic People's Republic."
38
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, pp. 204-205.
39"Japan," in U.S. Committee for Refugees, World Refugee Survey 2004, Washington, D.C.: U.S.
Committee for Refugees, 2004.
40"Mongolia," in U.S. Department of State, U.S. Department of State Country Report on Human Rights
Practices 2004, Washington, D.C.: U.S. Department of State, Bureau of Democracy, Human Rights andLabor, 28 February 2005.
41
United Nations High Commissioner for Refugees, 2004 Global Refugee Trends.
42"South Korea," in U.S. Committee for Refugees, World Refugee Survey 2004, Washington, D.C.: U.S.
Committee for Refugees, 2004.
43
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, pp. 290-291.
44"South Korea."45
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, pp. 296-97;
United Nations High Commissioner for Refugees, 2004 Global Refugee Trends.
46
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, p. 297.
47
"Russian Federation," in U.S. Committee for Refugees, World Refugee Survey 2005, Washington, D.C.:
U.S. Committee for Refugees, 20 June 2005.
48
United Nations High Commissioner for Refugees, 2003 UNHCR Statistical Yearbook, pp. 296-97;
United Nations High Commissioner for Refugees, 2004 Global Refugee Trends.
49"Russian Federation."
50
Ibid.
51
Papademetriou and Margon, p. 112.
52
Ibid., p. 112.
53
Piyasiri Wickramasekera, Asian Labour Migration: Issues and Challenges in an Era of Globalization,
International Migration Programme, International Labour Office No. 57, Geneva: International Labour
Office, 2002, pp. 19-20.
54
Papademetriou and Margon, p. 113.
55
"World Migration 2005," in Irena Omelaniuk, ed., World Migration 2005: Costs and Benefits ofInternational Migration, IOM World Migration Report Series, Vol. 3, Geneva: International Organization
for Migration, 2005, p. 390.
56
Wickramasekera, pp. 13-14.
57
Papademetriou and Margon, p. 113.
58
U.S. Department of State, Trafficking in Persons Report, Office of the Under Secretary for Global
Affairs No. 11252, Washington, D.C.: U.S. Department of State, June 2005.
59
Seymour, p. 11.
60
Ibid., pp. 15-16.
61
Hazel Smith, "North Koreans in China: Sorting Fact from Fiction," in Akaha and Vassilieva, pp. 165190.
62
U.S. Department of State, "Korea, Democratic People's Republic," in U.S. Department Of State Country
Report on Human Rights Practices 2004, Washington, D.C.: U.S. Department of State, Bureau of
Democracy, Human Rights and Labor, 28 February 2005.

43

63

Annie I. Bang, "Seven North Koreans Land in South, Seeking Asylum," Korea Herald, June 30, 2005.
Seymour, pp. 21-22.
65
Ibid., pp. 26-28.
66
T. Alexander Aleinikoff, International Legal Norms and Migration: An Analysis, Geneva: International
Organization for Migration, 2002, p. 15.
67
Ibid., p. 16.
For example, the UN Convention against Transnational Organized Crime (adopted by theGeneral Assembly in 2000, not yet in force) includes protocols dealing with smuggling and trafficking.
68
Ibid., p. 18.
69
Ibid.
70
Quoted in Aleinikoff, pp. 18-19.
71
Article 26 of the 1969 Vienna Convention on the Law of Treaties states this principle thus: "every treaty
in force is binding upon the parties to it and must be performed in good faith."72
Aleinikoff, p. 22.
73
Ibid., p. 23.
74
Ibid.
75
Ibid., pp. 23-24.
76
Article 36 of the 1963 convention; quoted in Aleinikoff, p. 25.
77
For example, the Universal Declaration of Human Rights (1948) states, "Everyone has the right to leave
any country, including his own, and to return to his country‖; quoted in Aleinikoff, p. 26.
78
Aleinikoff, p. 26.
79
Ibid.
80
Ibid.
81
Ibid., p. 27. According to the Human Rights Committee, which monitors implementation of theInternational Covenant on Civil and Political Rights (ICCPR), "there are few, if any, circumstances inwhich deprivation of the right to enter one's own country could be reasonable." Human Rights Committee,
General Comment No. 27, CCPR/C/21/Rev.1/Add.9, para 20 (1999); quoted in Aleinikoff, p. 27.
82
Stefanie Grant, "Migrants' Human Rights: From the Margins to the Mainstream."
83
Aleinikoff, p. 28.
84
Ibid., p. 28.
85
The 1951 Convention and its 1967 Protocol define a refugee as a person who "owing to well-foundedfear of being persecuted for reasons of race, religion, nationality, membership of a particular social groupor political opinion, is outside the country of his nationality and is unable or, owing to such fear, isunwilling to avail himself of the protection of that country." Quoted in Aleinikoff, p. 29.
86
Aleinikoff, p. 29. The Office of the United Nations High Commissioner for Refugees is charged withthe provision of international protection to refugees, permanent solutions for them, and supervision of theapplication of the provisions of the 1951 convention.
87
Ibid., pp. 31-32.
88
For a brief discussion of gaps in the international regime for refugees, see Aleinikoff, pp. 29-32.
89
Art. 3; quoted in Aleinikoff, p. 32.
90
Art. 2; quoted in Aleinikoff, p. 33.
91
Aleinikoff, p. 33. These obligations are stipulated in Arts. 6 and 7 of the Trafficking Protocol.
92
Ministry of Foreign Affairs website, <http://www.mofa.go.jp/policy/i_crime/people/action.html>(accessed September 3, 2005).
93
Aleinikoff, p. 33.
94
Art. 1(3), Art. 55(c); cited in Joan Fitzpatrick, "The Human Rights of Migrants," Conference on
International Legal Norms and Migration, Geneva, 23-25 May 2002, p. 2.
95
Art. 26; quoted in Aleinikoff, p. 35.
96
Human Rights Committee, General Comment 18, Non-discrimination (1989), para. 13: "not every
differentiation of treatment will constitute discrimination, if the criteria for such differentiation arereasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant";
quoted in Aleinikoff, p. 36.
97
For an extended discussion of this issue, see Fitzpatrick, pp. 3-7.
98
Aleinikoff, p. 36.
99
ICCPR, art. 26; cited in Aleinikoff, p. 36.
100
Aleinikoff, pp. 36-37.
64

44

101

ICESCR, art. 2(3); quoted in Aleinikoff, p. 37.
For example, various categories of immigrants are subject to restrictions with respect to the right towork or to participate in social welfare programs. Aleinikoff, p. 37.
103
Aleinikoff, p. 37.
104
Ibid., pp. 37-38.
105
Ibid., pp. 38-39.
106
For example, International Convention on the Elimination of All Forms of Racial Discrimination(CERD), December 21, 1965, art 1(2) states that the convention ―shall not apply to distinctions, exclusions,
restrictions or preferences made by a State Party to this Convention between citizens and non-citizens‖;
quoted in Aleinikoff, p. 39. Also, as noted earlier, developing countries may determine to what extent
they would guarantee for non-nationals the economic rights recognized in the ICESCR. Aleinikoff, p. 39.
107
Art 9(1); cited in Aleinikoff, p. 39.
108
Aleinikoff, p. 39.
109
Ibid.
110
Art. 10(1); quoted in Aleinikoff, p. 40.
111
An emerging right to family unification across national borders is strongest for refugees and settled
lawful immigrants but this right may be difficult to sustain for unauthorized entrants or asylum seekers.
Aleinikoff, p. 40.
112
Aleinikoff, p. 41.
113
Ibid., p. 40.
114
Art. 9: states ―shall ensure that a child shall not be separated from his or her parents against their will,
except when…such separation is necessary for the best interests of the child.‖ Quoted in Aleinikoff, p. 41.
115
Aleinikoff, p. 41.
116
ICCPR, Art. 13; cited in Aleinikoff, p. 42.
117
General Comment 15, para. 9 (1986); quoted in Aleinikoff, p. 42.
118
Art. 9(4); quoted in Aleinikoff, p. 43.
119
Aleinikoff, p. 44.
120
Ibid.
121
Ibid., p. 45.
122
Ibid., pp. 45-46.
123
Article 34; quoted in Aleinikoff, p. 46.
124
Aleinikoff, pp. 46-47.
125Ibid., p. 47.
126
Ibid.
127
Obod., pp. 47-48.
128
See Shin-wha Lee, ―The Realities of South Korea’s Migration Policies,‖ in Akaha and Vassilieva, pp.
191-214. In June 2005, the Korean government announced a plan to grant Korean citizenship to illegal
Chinese Korean residents who entered the country before Korea and China established diplomatic ties inAugust 1992. The plan was expected to affect an estimated 1,000 persons. Lee Sun-young, "ChineseKorean Illegals to Be Given Citizenship," Chosun Ilbo, June 11, 2005.
129
Seo Dong-shin, "Lawmaker Fuels over Dual Citizenship Law," The Korea Times, May 20, 2005.
130
Art. 27; noted in Aleinikoff, pp. 48-49.
131
Aleinikoff, p. 49.
132
See, for example, Mike Mervio, ―Koreans in Japan and Shimane,‖ in Akaha and Vassilieva, pp. 141162.
133
Roger Zegers de Beijl, "Combating Discrimination against Migrant Workers: International Standards,
National Legislation, and Voluntary Measures – The Need for a Multi-pronged Strategy," May 1997,<http://www.ilo.org/public/english/protection/migrant/papers/disstrat/index.htm>; cited in Fitzpatrick, p. 7.
134
Fitzpatrick, p. 8.
135See, for example, Cholewinski.
136
Cholewinski.
137
Jennifer Yau, "Promise and Prospects of the UN's Convention on Migrant Workers," Migration Policy
Institute, Washington, D.C., March 1, 2005,<http://www.migrationinformation.org/Feature/print.cfm?ID=288> (accessed August 6, 2005).
138
Art. 7.
102

45

139

Ryszard Cholewinski, "Protecting Migrant Workers in a Globalized World," Migration Policy Institute,
Washington, D.C., March 1,, 2005, <http://www.migrationinformation.org/Feature/print.cfm?ID=293>(accessed August 6, 2005).
140
Art. 10.
141
Cholewinski.
142
Caroline Dommen, "Migrants' Human Rights: Could GATS Help?" Migration Policy Institute,
Washington, D.C., March 1, 2005, <http://www.migrationinformation.org/Feature/print.cfm?ID=290>(accessed August 6, 2005).
143
Grant.
144
Ibid.
145
"Panel OKs Bills to Aid Victims of Trafficking," Japan Times, June 15, 2005,<http://www.japantimes.co.jp/cgi-bin/makeprfy.p15?nn20050615a5.htm> (accessed June 15, 2005).
146
Robyn Iredale and Nicola Piper," Identification of the Obstacles to the Signing and Ratification of the
UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families:
The Asia-Pacific Perspective," UNESCO, Paris, October 23,<http://unesdoc.unesco.org/images/0013/001395/139528E.pdf> (accessed August 26, 2005)
147"Regional Hearing for Asia and the Pacific, Manila, Philippines, 17 and 18 May 2004: Summary
Report," Global Commission on International Migration, Geneva, n.d. (Hereafter "Regional Hearing for
Asia and the Pacific")
148
International Organization for Migration, Labour Migration in Asia: Trends, Challenges, and Policy
Responses in Countries of Origin, Geneva: IOM, 2003.
149"Regional Hearing for Asia and the Pacific," p. 2.
150
Ibid.
151
Ibid., pp. 3-4.
152
Among the violations of migrants' human rights noted were: abusive work conditions; exposure to
racism, xenophobia, and other forms of intolerance; employers' failure to extend the protections or benefits
their employees deserve; abuse and torture during detention; and deportation under inhumane conditions.
Ibid., pp. 4-5.
153
Ibid.
154
International Organization for Migration, Labour Migration in Asia, pp. 57-60.
155Ibid., pp. 60-62.
156
Ibid., pp. 65-66. The report lists the following as the main obstacles: relative insignificance of
migration/migrant workers in the country; absence of the necessary infrastructure to apply the conventions
and high cost of implementing the conventions; national economic problems and high unemployment rates
prompting governments to give preference to nationals over foreign labor; complexity of national
immigration legislation and practice, as well as the constant evolution of legislation on this subject; and thedifferent context in which the conventions were developed, i.e., increasing privatization of migration
movements, feminization of migration, and increases in temporary migration and in irregular migration
157
Colleen Thouez and Frederique Channac, "Convergence and Divergence in Migration Policy: The Roleof Regional Consultative Processes," Global Migration Perspectives No. 20, Geneva, Global Commission
on International Migration, January 2005, p. 14. Examples of RCMPs are found in many parts of theworld: Europe, North America, and Australia through the "IGC" (Inter-governmental Consultations on
Asylum, Refugees, and Migration Policies in Europe, North America, and Australia); Northern and Central
America through the "Puebla Process" (the Regional Conference on Migration); Southern Africa throughthe "MIDSA Process" (Migration Dialogue for Southern Africa); and Europe through the "Budapest
Process". In Asia, we see the "Manila Process," (the IOM Regional Seminar in Irregular Migration and
Migrant Trafficking in East and Southeast Asia), APC (Inter-governmental Asia-Pacific Consultations on
Refugees and Displaced Persons), and the Bangkok Declaration on Irregular Migration.
158
International Organization for Migration, World Migration 2003, Geneva: IOM, 2003, particularly
Chapter 8, "Managing Migration at the Regional Level – Strategies for Regional Consultation."
159
International Organization for Migration, World Migration 2003, p. 135.
160
Ibid., p. 136.
161
Ibid., p. 137. In addition, some economic groupings in Asia-Pacific pay some attention to migration
issues even though they are not priority issues. Such groupings include ASEAN, South Asia Association
for Regional Cooperation (SARC), Asia Pacific Economic Cooperation (APEC), Boao Forum for Asia

46

(BFA), and Pacific Island Forum (PIF). International Organization for Migration, p. 138. See alsoInternational Organization for Migration, The Role of Regional Consultative Processes in Managing
International Migration, IOM Migration Research Series No. 3, Geneva: IOM, 2001.
162
This point is emphasized in Amanda Klekowski von Koppenfels.
163
For a brief overview of human trafficking in East Asia, see Shin-wha Lee, Promoting Human Security,
pp. 52-55.

47