This week China criticised Australia's treatment of asylum seekers. The criticism, raised at a bilateral human rights dialogue, is good politics: China is using Australia's cruel and inhumane asylum policy as diplomatic leverage. Nevertheless, it is astounding hypocrisy from a country that returns refugees to danger, including to North Korea, a state infamous for its widespread violations of human rights.
China's vice-minister of foreign affairs, Li Baodong (pictured), raised the question of whether refugees will be 'illegally repatriated to other countries' by Australia. He is referring to the principle of non-refoulement, which requires countries to refrain from returning refugees to a place where they face persecution.
Non-refoulement, set out in the Refugee Convention, prohibits the forced return 'in any manner whatsoever' of refugees to places where their 'life or freedom' would be threatened on account of their 'race, religion, nationality, membership of a particular social or political opinion'.
The principle is the fundamental plank of international refugee law and the first and foremost obligation of countries that have signed the Refugee Convention, such as Australia and China. However, the scope of non-refoulement is limited. Although non-refoulement has erroneously been thought to include a duty to offer asylum, the principle only extends to a responsibility not to return a refugee to persecution.
While there are many problems with Australia's asylum policy, the Government's harsh treatment of asylum seekers probably does not amount to refoulement. In fact, a rationale of the current regional arrangements with Nauru and Papua New Guinea is to avoid violating the non-refoulement principle while still deterring asylum seekers. That said, the 'enhanced screening' process for Sri Lankan asylum seekers, some of whom are returned without access to legal advice, certainly calls in to question Canberra's commitment to the principle.
China, on the other hand, has a track record of returning refugees to danger. As recently as June 2013, China refouled nine North Korean dissidents who had fled the country. The Office of the High Commissioner for Human Rights expressed 'extreme concern' for the young defectors, citing 'risk of severe punishment and ill-treatment' upon their return and dismay that China had abrogated their obligation of non-refoulement.
All nine defectors were reportedly orphans, including up to five children. The group was arrested by Laotian police while crossing the Laos-China border and sent back to China, from where they were returned to North Korea. At the time of the return, the Special Rapporteur on human rights in North Korea, Marzuki Darusman, said that 'no one should be refouled to the DPRK' due to the risk of torture and the death penalty.
North Korea is currently the subject of a Human Rights Council Commission of Inquiry. Led by former High Court judge Michael Kirby, the inquiry is investigating systematic, widespread and grave violations of human rights in the country. A preliminary report documents shocking crimes comparable to those perpetrated by the Nazis that amount to crimes against humanity.
While it is worth noting that China tacitly allows tens of thousands of North Koreans to remain illegally, it has forcibly returned tens of thousands over the past two decades. Beijing continues to consider all North Koreans 'economic migrants' rather than refugees or asylum seekers.
China's violation of international refugee law extends beyond North Korea. In 2012, the UNHCR expressed serious concern at China's return of an estimated 5000 ethnic Kachins to Burma, after fighting broke out in June 2011 between Burmese government troops and rebels in Kachin state.
Beijing's criticism of Australia's asylum policy diverts attention from the many human rights challenges China faces and demonstrates how Australia's international standing is damaged by our cruel and inhumane approach to asylum seekers. On the other hand the criticism lacks legal basis: while Australia may well be testing the boundaries of the non-refoulement principle, China has repeatedly violated its international obligations outright.
Nik Tan is a lawyer and editor of Asylum Insight. He is a former officer of the Department of Foreign Affairs and Trade. This piece initially appeared in Eureka Street.