The Legality of Forcibly Repatriating North Korean Defectors under International Law and Human Rights Law.

Written by Isabella Martins

Edited by Debashmi Chakrabarti 

Isabella Martins is an undergraduate student at Sciences Po Paris, Le Havre Campus, in the Social Sciences track. She plans to major in Politics and Government with a minor in Law. Her academic interests include law, human rights, political science, and history.

“When I was sent back, they said I had betrayed the state. I was beaten until I could not stand, and then taken to the camp. Many did not survive the winter.” – Testimony of a repatriated North Korean defector, cited in the UN Commission of Inquiry on the DPRK (2014)

For individuals forcibly returned to the DPRK, repatriation may often result in arbitrary detention, torture and even death.  Such accounts reveal the greater human costs of repatriation policies, framing the legal questions being examined in this article. Under North Korean law, once an individual is caught attempting to defect, the actions of a single family member can have significant repercussions for the entire family, including up to three generations.  North Korea engages in severe human rights abuses and profound economic difficulties.

At the heart of this issue lies the principle of non-refoulement, a key to international refugee and human rights law. Codified in Article 33 of the 1951 Refugee Convention and then reinforced through parallel obligations such as the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), non-refoulement calls for the prohibition of states returning individuals to territories where they face a real risk of persecution, torture, or death.  While refugee law traditionally hinges on an individual’s legal status, international human rights law extends such protections to all persons within a state’s jurisdiction regardless of their classification.  It is this distinction that is central to the treatment of North Korean defectors whose protection claims are frequently rejected through restrictive interpretations of refugee status.

Labelling these defectors as “economic migrants” is more than just semantics. It’s about governments claiming the right to police their borders, but that right stops when sending someone back means they’ll face torture or other kinds of serious harm. The ban on torture and inhuman or degrading treatment under Article 3 of the CAT and Articles 6 and 7 of the ICCPR is absolute and non-derogable, applied irrespective of an individual’s refugee status.  In the DPRK’s case, where the treatment of repatriated individuals is well documented and systematic, the central question is whether states can lawfully rely on domestic law or bilateral agreements to justify repatriation in the face of clear human rights obligations.

This paper examines the issue of whether there is any incompatibility between the provision of forcibly repatriating North Korean defectors when states are aware of returning persons to a jurisdiction where there are widespread violations of human rights under international law. It focuses on two interrelated legal questions: first, whether such repatriations contravene the principle of non-refoulement under international refugee and human rights law, while the other is whether states are permitted to invoke their legal frameworks on matters of migration, their cooperation agreements with the DPRK, and restrictive definitions of forcible refoulement in their legal actions. The discussion also considers the broader legal implications of such practices, particularly the circumstances under which state conduct gives rise to responsibility for internationally wrongful acts.

At the forefront of such an examination, however, is the jurisprudence of Soering v. UK and Chahal v. UK, in which it was asserted that states may assume responsibility for conduct where individuals are foreseeably at risk of prohibited treatment outside their borders.  The cases clarify the meaning of “real risk” and affirm the extraterritorial application of non-refoulement obligations, disavowing any weighing of fundamental rights against migration and/or security concerns. Although these developments arose from the European human rights framework, their premises have been reiterated by United Nations treaty bodies, affirming the universality of refoulement.

Grounded in treaty provisions, judicial decisions, United Nations findings, and state practice, this article contends that forced repatriation violates international law and engages the state's responsibility.

I. The International Legal Framework

IA. Refugee Law and Human Rights Law

Non-refoulement, sitting at the heart of refugee law, is codified under Article 33(1) of the 1951 Refugee Convention, providing that no Contracting State shall send (“refouler”) a refugee back to a place where their life or freedom would be in danger for any reason covered by the Convention.  Once someone meets the definition of “refugee” under Article 1A(2), states aren’t allowed to send them back into harm’s way.  While Article 33(2) carves out some narrow exceptions, these don’t override the stricter, absolute rules against refoulement found in international human rights law.

Yet the reliance on status in refugee law has repeatedly been cited as a continent’s excuse for shirking its obligations to protect. In the context of North Korean defectors, neighbouring states—primarily China—have always maintained that persons crossing the border do not merit refugee status since their ‘primary’ cause for escape is not persecution but rather a lack of economic opportunities.  This position is one of liberal interpretation of the definition of a refugee, neglecting the importance of persecution that may be suffered upon return, as stated in the UNHCR handbook.  According to the handbook, the definition of a refugee is not restricted to those persons facing persecution at the time of escape. Still, it may also include persons who merit refugee status in situ as a consequence of circumstances arising after departure.  For North Korean defectors, a significant body of evidence demonstrates that escape in itself (unauthorised departure) is considered a political crime by the DPRK authorities; as a consequence, upon return, persons face punishment irrespective of their desired objectives at the time of departure, along with three generations of their family.

Even where refugee status is contested, international human rights regimes offer a status-independent basis for claiming protection. Article 3 of the Convention Against Torture sets a non-derogable standard by which no person may be extradited or returned to any country if the party has good reason to think the individual would face the threat of torture.  Unlike Article 33 of the Refugee Convention, Article 3 of the Convention against Torture contains no exemptions or balancing factors. On the same basis, the Human Rights Covenant’s Articles 6 and 7 guarantee the life of any person under their jurisdiction as well as the prohibition of torture and cruel, inhuman, or degrading treatment. The Human Rights Committee has regularly applied these laws to detention cases involving individuals facing a concrete threat of serious and irreversible harm.  According to the Human Rights Committee’s General Comment 31, individuals may not be extradited if the party has good reason to believe that the detention would constitute a breach of Articles 6 or 7.

The distinction between the principles of refugee law and human rights law is therefore significant. Under refugee law, refugees receive protection on the basis of legal categorisation. In contrast, under human rights law, they receive the same protection across all persons within the state's jurisdiction, irrespective of their legal category, as noted by Costello & De Schutter.

Upon judgment against this template, the Chinese government’s “economic migrant” thesis does not hold up against doctrinal and normative grounds. Under refugee law, the argument can be seen to disregard the concept of refugees sur place and the relevance of persecution upon return. Under human rights law, it is legally irrelevant. The CAT and ICCPR do not require protection on refugee status, nor permit states to rely on domestic immigration classifications to justify exposure to torture or death.  As Hathaway clearly emphasises, internal law does not provide an excuse from the obligations of international treaties.  The hierarchy of norms seems to emphasise this.

In view of this, contemporary international law on the principle of non-refoulement presents a complex architecture of safeguards that profoundly limits State discretion. Indeed, from either a refugee or a human rights law perspective, forced return to a territory where there is a foreseeable high risk of serious adverse treatment is prima facie unlawful.  This normative basis is clearly critical for determining whether or not the repatriation of North Korean defectors is authorised under international law.

IB. State Responsibility and the “Real Risk” Standard

Having established the base content of the non-refoulement policy under refugee and human rights law, the analysis must turn to state responsibility. International law may still attribute responsibility to a state’s conduct even where harm materialises outside a state’s territory, for foreseeable exposure of an individual to prohibited treatment.  The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ILC Articles) provide the doctrinal framework for determining when repatriation engages responsibility under international law.

An international wrongful act arises under Article 1 of the ILC Articles where conduct attributable to a state constitutes a breach of an international obligation.  In these repatriation cases, attribution is not in dispute, as decisions to deport have already been made by state authorities acting in an official capacity. The central question must therefore turn to whether removal breaches non-refoulement obligations and, where responsibility may arise, whether another state foresawably inflicted harm, rather than whether conduct is attributable.

When deportation is repeated over time, responsibility may arise from the continuing or systematic violations rather than from isolated incidents, particularly when such wrongful conduct persists and contributes to its ongoing effects.  In the cases of forced repatriation to the DPRK, the repeated return of defectors despite well-documented risk suggests a pattern of conduct constituting a continued breach rather than a series of discrete violations.

State responsibility can also arise from aid or assistance provided in connection with the commission of an internationally wrongful act. Article 16 of the ILC Articles provides that a state which knowingly aids or assists another state in the commission of an internationally wrongful act is internationally responsible if the act would be wrongful if committed by the assisting state itself.  This provision is particularly relevant to indirect refoulement, where transit states facilitate individuals' transfer to a third state that enables their return to a territory of persecution. Where such assistance is given with knowledge of the associated risk, responsibility may be attached, even if the aid does not directly affect the final return.

At the heart of the debate over whether repatriation engages state responsibility is the “real risk standard”, which serves as the evidentiary threshold for establishing a breach of non-refoulement obligations. This standard is not about proving harm with certainty, but rather that there are substantial grounds for believing an individual would face a real and foreseeable risk of prohibited treatment.  International bodies like the Committee Against Torture and the Human Rights Committee have kept a consistent standard, reflecting a preventive logic aimed at averting irreparable harm.

Predictability is a key element in this test. International law does not allow states to invoke ignorance when there is a real risk of forbidden treatment, based on information that was reasonably available at the relevant time.  As the Human Rights Committee has found, states have a positive duty to consider the predictable consequences of deportation decisions, and liability may flow when officials knew, or ought reasonably to have known, that removal would result in irreparable injury. In the context of the DPRK, the danger to which returned persons are exposed is well documented and therefore objectively foreseeable.

Academic commentary continues to support the extraterritoriality of state responsibility in such cases. Crawford underlined that responsibility is not limited to harm occurring on a state's territory, but extends to situations in which the state's conduct is a necessary link in the causal chain leading to prohibited treatment.  Along these lines, Milanovic argues that human rights obligations may apply extraterritorially where a state exercises control over an individual's fate through decisions entailing deportation or extradition.  In that line of thinking, responsibility would result not because the deporting state acts upon the harm itself, but because it knowingly submits the individual to a real risk of irreparable harm.

Applied to the repatriation of North Korean defectors, this framework indicates that state responsibility is engaged when removal decisions are made with full awareness of the consequences awaiting returnees. This holds whether the state acts directly or indirectly. By facilitating the return to the DPRK, states play an active role in a process that leads to violations of obligations closely linked to peremptory norms.  The “real risk” standard connects the core non-refoulement obligation to the question of responsibility, ensuring the law covers not just where the harm occurs, but also how and why it becomes possible.

II. Application to the Repatriation of North Korean Defectors

IIA. Case Law and Evidentiary Assessment

Indeed, international jurisprudence has decisively clarified how the principle of non-refoulement applies in cases where a third country causes harm. Two leading decisions of the European Court of Human Rights–the Soering case of 1989 and Chahal vs. United Kingdom of 1996–have constituted the framework of analysis of a significant number of decisions on this topic and defined how a removal may engage international responsibility, adopting a so-called “real risk” standard rather than a balancing exercise.  These reasoning patterns have also influenced the United Nations treaty bodies' approaches. They can serve as a convincing basis for evaluating the international legality of the return of North Korean defectors.

In Soering v. United Kingdom (1989), the Court found that the applicant's return to the United States would place the United Kingdom in breach of Article 3 of the ECHR because of a real risk of inhuman or degrading treatment arising from prolonged detention in prison awaiting execution.  However, what is significant in this case for the context of this analysis is that the Court stressed that responsibility can arise even if inflicted by other states, as long as the removing state’s action foreseeably results in the individual being subjected to the proscribed treatment.  The Soering case clarified three principles: the extraterritorial reach of non-refoulement, the preventive nature of the “real risk” standard, and the attribution of responsibility based on foreseeable consequences.  In the context of DPRK repatriations, Soering thus confirms that states can incur responsibility for torture and other severe human suffering that the government of North Korea can foreseeably inflict.

Subsequent cases by the Court, such as Chahal v. United Kingdom in 1996, further confirmed and generalised this approach.  Chahal is relevant not only for establishing the absolute nature of the prohibition on refoulement, but also for dismissing any internal rationale for migration policies or security matters.  The approach of the Chahal judgment holds directly against any attempt by States to justify the repatriation of North Korean defectors based on their domestic immigration legislation or any international agreements.

The principles, while born in the European human rights system, have found echoes in the case law of United Nations treaty bodies. The Committee Against Torture, as well as the Human Rights Committee, in assessing whether removal would irreversibly imperil an individual, employs a preventive approach looking to the future.

This standard of evidence established through this body of jurisprudence is pertinent and should be viewed in light of the facts based on the circumstances of repatriated North Korean defectors. According to the United Nations Commission of Inquiry on Human Rights in the DPRK of 2014, state authorities have engaged in systematic, widespread, and gross violations of human rights, and many of these violations constitute crimes against humanity.  Among the activities that have been widely recognised as being routinely engaged in include theimprisonment, torture, and use of forced labour of people repatriated for unlawful exit.

These observations are supported by extensive documentation by non-governmental organisations on the topic. There has been documentation by various non-governmental organisations, including Amnesty International and Human Rights Watch, on the pattern of abuses that repatriated individuals face for several decades, based on the consistent accounts by defectors of interrogations, beatings, and detentions in political prison camps.  This kind of evidence has been fortified by the analysis of satellite photographs by United Nations bodies as well as non-governmental organisations on human rights, which has independently confirmed the presence of political prison camps in the Democratic People’s Republic of Korea on a large scale.  This kind of evidence taken together provides conclusive proof that the risk faced by repatriated individuals is systemic, well-documented, and reasonably foreseeable.

IIB. State Practice and Legal Justifications

Whether the repatriation of North Korean defectors is or should be considered legal ultimately depends on whether the reasons offered by the repatriating states can withstand scrutiny under the rules of international law. Arguments advanced by the states surrounding the DPRK on grounds of domestic immigration categories, bilateral arrangements, or the limited responsibility of transit states, for instance, do not meet the standards of non-refoulement and state responsibility.

In the context of China, their decision, or rather agreement, to repatriate North Koreans dates back to 1964, when the two countries signed their first repatriation agreement on 9 June, in which both mutually recognised each other’s cooperation to prevent illegal border crossings.  In the Protocol between the two countries titled: “Mutual Cooperation in Safeguarding National Security and Social Order in Border Areas”, China and the DPRK recognise their own decisive roles in repatriating displaced or fugitive citizens as well as protecting order along the border in preventing illegal crossings (Articles 3 and 4).  Along with the Protocol, China has implemented numerous repatriation measures used to deter further migration, permitting authorities to arrest and remove North Koreans.

China plays an integral role in regional repatriation policies. China, having consistently categorised North Korean defectors as “economic migrants”, has thereby deemed them to have unauthorised entry as an internal matter of immigration law enforcement.  This classification has been maintained within China’s heavy dependence upon internal law and regional agreements between China and the DPRK to repatriate those people who have illegally entered the country through the border. For China, this is an exercise of its sovereign right to control its borders and maintain public order.

Yet, under international law, classification and national law lose their relevance. As seen in prior sections, the law of refugee status applies the doctrine of refugees sur place, rendering the motive for leaving immaterial once persecution becomes a consequence of return.  Moreover, even if a person is refused status under the Convention, the obligations that China undertook under the Convention Against Torture and the International Covenant on Civil and Political Rights remain applicable. Both conventions ban refoulement based on a real risk of torture and irreparable harm, irrespective of the status of the affected person.  Within academic writing, there is a consistent concern that international obligations cannot be validly avoided by national immigration law, which is addressed within the hierarchy of norms governing the interpretation of international obligations.

China also aims to justify the repatriation of North Koreans through bilateral agreements with the DPRK. However, such arrangements cannot, as a matter of international law, displace treaty obligations owed to the international community as a whole. Article 30 of the Vienna Convention on the Law of Treaties provides that bilateral agreements cannot derogate from prior multilateral obligations governing the same subject matter, particularly when a purported modification is inconsistent with fundamental principles of international law.  Concerning bilateral agreements contrary to jus cogens norms, such as the non-refoulement and anti-torture norms, such contracts cannot supplant the relevant treaty obligations.  Accordingly, agreements on cooperation or repatriation cannot exculpate China from responsibility where repatriation exposes individuals to a foreseeable risk of serious harm.

The Chinese and Russian practices, in light of international norms, are no less problematic. China’s CCTNs and Russia’s detention and deportation of North Korean nationals through extradition and immigration laws, in particular, are not as systematic as the Chinese system but still constitute detention and deportation.  China and Russia, as states parties to the CAT and the ICCPR, respectively, and as such subject to the same refoulement prohibitions in relation to the risk of torture and death, in particular, with regard to the treatment in the DPRK, do not need any treaty requirements and/or any removal scheme. In deportation cases in which the treatment in the DPRK is well known, states may be responsible under the same criteria for foreseeability and harm outside their territory.

The actions of Laos and other Southeast Asian countries add an additional layer of complexity to this. Such countries are frequently acting as transit countries and are handing over North Korean defectors to China rather than to the DPRK. Although countries in Southeast Asia are not involved in the final return of individuals to their countries of persecution, they are not exempt from refoulement by proxy.  According to UNHCR norms, states are not supposed to transfer persons likely to face return to persecution or torture.

Under Article 16 of the ILC Articles on State Responsibility, a state that aids or assists another state in committing an internationally wrongful act is responsible if that act would be wrongful if committed by the assisting state itself.  When transit states are aware of, or should have been aware that, a transfer to China is intended to effect repatriation to the DPRK, such aid and assistance can engage a state’s responsibility.  The scholarly literature on complicity highlights that physical co-participation in the final wrongful act is not required. Still, that contribution to a series of conduct culminating in a violation is.

In sum, the reasons cited for repatriation and transit countries reveal a similar penchant for formalistic lines drawn between refugees and migrants, between national and international law, and between indirect and direct return, none of which are recognised under international law. The legal regime of non-refoulement prioritises risk over formal status and obligations that are not preempted by national law or international agreements.  The importance of non-refoulement in serving as a mechanism to check state discretion in politically charged circumstances has been noted by Hathaway and Costello.

When it is considered through this lens, it can be seen that, with this pattern of practice, international law and repatriating North Korean defectors cannot be harmonised. Regardless of whether it is in an “indirect way,” countries that are “knowingly putting individuals at risk of torture and other serious harm are equally culpable for internationally wrongful acts.”  The fact that this situation exists speaks not to a lack in international law, but to problems with compliance.

Conclusion

The foregoing analysis of this article draws together the relevant treaty obligations, international jurisprudence, and state practice to demonstrate that the practice of states bordering the DPRK in forcibly repatriating North Korean defectors is incompatible with international law. When looking at treaty obligations, international jurisprudence, and documented state practice, the answer becomes clear: such actions violate the principles of non-refoulement and engage states responsibility where individuals are knowingly being returned to a real risk of torture, arbitrary detention, or death by execution.

When developing the “real risk” standard, international case law and the practice of treaty bodies establish a preventive threshold to avoid foreseeable harm.  Given the empirical record at hand, including findings by UN bodies, consistent testimony by defectors and satellite images of political prison camps, the risk faced by individuals being repatriated to the DPRK is foreseeable and well-documented.  Therefore, states cannot have any reasonable doubt as to the consequences of the repatriation decision.

An analysis of state practice indicates that the arguments advanced thus far by the sending states are insufficient under international law. The latter does not displace treaty-based refoulement by domestic immigration classification, bilateral agreements, or claims of transit-state neutrality.  When states either deport defectors directly or facilitate their return through third countries, responsibility may arise by way of aid or assistance in the commission of internationally wrongful acts.  These conclusions indicate that continued repatriation practices reflect not doctrinal ambiguity, but persistent non-compliance with clearly articulated legal norms.

Beyond the context of North Korean defectors, this analysis carries broader implications for international law. The absolute nature of non-refoulement and its grounding in the prohibition of torture situate it within a category of obligations arguably owed to the international community as a whole.

Persistent violations, therefore, raise questions not only about individual state responsibility, but also about collective enforcement and the effectiveness of international legal mechanisms in constraining state behaviour in politically sensitive areas.  The continued repatriation of North Korean defectors illustrates the continued divide between binding legal norms and state practice, raising sharp concerns about the effectiveness of mechanisms designed to ensure human rights accountability.

Bibliography:

Amnesty International. ‘Human Rights in North Korea’. Accessed 19 December 2025. https://www.amnesty.org/en/location/asia-and-the-pacific/east-asia/north-korea/.

Case of Soering v. The United Kingdom (European Court of Human Rights 7 July 1989).

Chahal v. The United Kingdom (European Court of Human Rights 15 November 1996).

Chan, E., and A. Schloenhardt. ‘North Korean Refugees and International Refugee Law’. International Journal of Refugee Law 19, no. 2 (2007): 215–45. https://doi.org/10.1093/ijrl/eem014.

Chung, Eunbee. ‘The Chinese Government’s Policy Toward North Korean Defectors’, Changes & Transitions (Korea) 5, no. 2 (2014), https://kida.re.kr/data/kjda/01_Dong-ho%20Han.pdf.

Coffey, Veronica. ‘The Plight of North Korean Refugees in China | Wilson Center’. Wilson Center, 3 April 2025. https://www.wilsoncenter.org/article/plight-north-korean-refugees-china.

Cohen, Roberta. ‘China’s Repatriation of North Korean Refugees’, UN Website, UNHCR Refugee Agency, 5 March 2012, https://www.refworld.org/policy/statements/brookings/2012/en/85356.

Costello, Cathryn. The Human Rights of Migrants and Refugees in European Law. 1st edn. 1 vol. Oxford Studies in European Law. Oxford University Press, 2016.

Crawford, James. State Responsibility: The General Part. 1st edn. 1 vol. Cambridge Studies in International and Comparative Law 99. Cambridge University Press, 2013.

De Schutter, Olivier. International Human Rights Law: Cases, Materials, Commentary. 2nd edn. 1 vol. Cambridge University Press, 2014.

Haggard, Stephan, and Marcus Noland. Famine in North Korea: Markets, Aid, and Reform. 1st edn. 1 vol. Columbia University Press, 2007.

Hathaway, James C. The Rights of Refugees under International Law. Repr. Cambridge Univ. Press, 2011.

Kim, Sung Kyung. ‘“Defector,” “Refugee,” or “Migrant”? North Korean Settlers in South Korea’s Changing Social Discourse’. North Korean Review 8, no. 2 (2012): 94–110. https://doi.org/10.3172/NKR.8.2.94.

MacArthur Foundation, ‘Protocol between the PRC Ministry of Public Security and the DPRK Social Safety Ministry for Mutual Cooperation in Safeguarding National Security and Social Order in Border Areas’, Digital Archive, Wilson Center, 9 June 1964, https://digitalarchive.wilsoncenter.org/document/protocol-between-prc-ministry-public-security-and-dprk-social-safety-ministry-mutual?_gl=1*1bty0zj*_gcl_au*NTcxNTMxMzEyLjE3NzA3MDkyNjQ.*_ga*MTMwNzkwOTQwOC4xNzcwNzA5MjY0*_ga_6MDYB7KP94*czE3NzA3MDkyNjMkbzEkZzAkdDE3NzA3MDkyNjMkajYwJGwwJGg.

Milanović, Marko. Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. 1st edn. 1 vol. Oxford University Press, 2011.

‘The Invisible Exodus’. Human Rights Watch 14 (November 2002): 38.

UN Human Rights Committee (HRC). ‘General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’. International Covenant on Civil and Political Rights CCPR/C/21/Rev.1/Add.13, no. Eightieth session (2004): 8.

UNHCR. ‘Access to Territory and Non-Refoulement’. 6 March 2025. https://emergency.unhcr.org/protection/legal-framework/access-territory-and-non-refoulement.

UNHCR. ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’. The UN Refugee Agency HCR/1P/4/ENG/REV. 4 (February 2019).

United Nations. ‘Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea’. United Nations, Report of the Human Rights Committee, Twenty-fifth session, no. Agenda item 4 (2014): 14–140. https://doi.org/10.18356/eada8988-en.

United Nations. ‘Responsibility of States for Internationally Wrongful Acts (2001)’. United Nations 1, no. Corr.4. (2005): 15.

United Nations Human Rights OHC. ‘OHCHR Juris Database’. Accessed 19 December 2025. https://juris.ohchr.org/.