Position of the Korea Refugee Rights Network on the
Ministry of Justice’s Legislative Notice of December 12, 2023 of a Partial Amendment to the ｢Refugee Act｣
(Legislative notice of the Ministry of Justice’s partial amendment to the ｢Refugee Act｣: https://shorturl.at/fxEV2)
The Korea Refugee Rights Network (KORIN) expresses strong concern that the legislative notice of a partial amendment to the ｢Refugee Act｣, announced by the Ministry of Justice and reported on December 12, 1) is based on xenophobia and runs against inclusive policy, 2) contrary to the Ministry’s claims, directly contradicts international law and international standards such as the Refugee Convention, and 3) encourages the public to believe wrongly that there are “terrorists” or “persons suspected of terrorism” among refugees. It holds that the amendment must be withdrawn immediately.
The Ministry of Justice has stressed that it was the first country in Asia to enact and enforce a law implementing the Refugee Convention, and has promoted Korea to the international community as a country that protects refugees. Even so, it has not fully carried out the obligations that the Refugee Convention places on its States Parties. In particular, under Article 6 of the Constitution the Refugee Convention has the same effect as domestic law, so the status of foreigners such as refugees must be guaranteed as the Convention provides. That is, every “refugee” as defined by the Refugee Convention must be protected regardless of the Ministry of Justice’s likes and dislikes. Yet the Ministry has run the system as if its discretion could apply to the definition of a refugee.
The Refugee Convention defines a refugee strictly and obliges States Parties not to forcibly return a “refugee” as so defined. It also prevents States Parties from restricting the recognition of refugees lightly on grounds such as the public interest, and, to protect refugees from abuse of such a system, it strictly limits this through the “exclusion clauses”. Under Article 1, Section F of the Refugee Convention, the categories of refugees excluded from recognition are as follows.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
However, the amendment announced by the Ministry of Justice on December 12, 2023 seeks to create grounds on which a refugee may be “denied recognition as a refugee”, and it has the following problems.
1. The Ministry of Justice’s amendment directly contradicts international law.
The ｢Vienna Convention on the Law of Treaties｣ stresses that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty, and it prevents a party from avoiding its international legal obligations by pointing to new domestic provisions adopted after it concluded the treaty. Therefore, a provision by which the Republic of Korea, as a State Party to the Refugee Convention, arbitrarily defines the scope of the “refugees” it is obliged to protect under the Convention and widens the scope in which it can avoid its obligation of non-refoulement is a violation of international law. The only way to justify such a provision would be to withdraw from the Refugee Convention. As noted above, the Refugee Convention contains “exclusion clauses” in Article 1, Section F; the Convention already has effect in domestic law; and these clauses are also included in Article 19 of Korea’s Refugee Act as grounds for “restriction of refugee recognition”. Nevertheless, the amendment announced by the Ministry of Justice on December 12, 2023 goes beyond these exclusion clauses and seeks to create grounds on which refugees can be “denied recognition as refugees” at the arbitrary judgment of the immigration authorities, which violates international law, including the Refugee Convention.
2. Under the Refugee Convention, the Ministry of Justice’s refugee status determination procedure is merely a procedure of “confirmation” that a person is a refugee, yet this bill gives the Ministry of Justice excessive discretion.
That is, the Ministry of Justice has only the authority to confirm, in accordance with the Convention, that an asylum seeker is already a refugee. It does not perform an act of “conferring rights” by which it grants refugee status at its own discretion to a person who is not a refugee. Therefore, creating a legal basis on which refugee status may be withheld from an asylum seeker who is already a refugee is an act that directly contradicts the framework of the Refugee Convention and the principle of protection.
3. The content of the Ministry of Justice’s amendment is unclear, and it is very likely to work against refugees.
The Ministry of Justice intends to use “national security, maintenance of order and public welfare” as grounds to refuse refugee recognition and to revoke refugee status. Because of the vagueness of the provision, there is a very serious concern that it could serve as grounds for the immigration authorities to strip status easily from refugees they dislike and to forcibly return them. In its press release of December 12, the Ministry of Justice said that the amendment is meant to remedy the problem that the “current Refugee Act” has no explicit basis, unlike the Refugee Convention and the refugee laws of major countries, for excluding terrorists and persons suspected of terrorism from refugee protection, and it quoted Minister Han Dong-hoon as saying that there was “not enough legal basis to prevent terrorists and persons suspected of terrorism from being recognized as refugees”. The terms terrorist, and especially person suspected of terrorism, are very vague. It is unclear which organizations count as “terrorist organizations” and how far joining and acting in them extends, which could lead to refugee recognition being decided arbitrarily by the interpretation of intelligence agencies. In fact, in some countries where democracy is not established, opposition politicians and groups that oppose the ruling party and those in power are often persecuted after being branded “anti-state organizations” or “terrorist organizations”. Such things happened frequently in Korea too until a few decades ago, when political freedom was not guaranteed. This is also the reason the Refugee Convention strictly defines the grounds through the exclusion clauses.
4. The stated reason for the proposal, to protect the people and the state from refugees who are “persons suspected of terrorism” or “drug offenders”, fosters hatred based on unjust prejudice against refugees.
Despite the strict provisions of the Refugee Convention, the Ministry of Justice is already unlawfully issuing deportation orders even to recognized refugees and holding them for long periods in immigration detention centers. It does not stop there; it now intends to expel refugees by creating grounds to strip them of refugee status. Where no particular problem has been identified, “public anxiety about refugees” should be overcome through public outreach and active guidance by the responsible ministry. Instead, pushing for a change in the law while fostering groundless and vague anxiety means that the Ministry of Justice is neglecting its duty to improve public perception of refugees. Just last month, the UN Human Rights Committee expressed concern about the increase in hate speech against migrants, asylum seekers and refugees, offline and online, including by politicians and public figures, and recommended that the Government of the Republic of Korea make efforts to improve public awareness. If concerns arise from legal vagueness, the procedures and requirements should be specified in detail to make decisions more predictable. But as seen above, because the amendment is inconsistent with international law and its wording is ambiguous, it is likely to convey a negative image of refugees to the public and to lower public trust in the current Refugee Act and the refugee status determination procedure.
The Korea Refugee Rights Network once again stresses its concern about the Ministry of Justice’s partial amendment to the ｢Refugee Act｣, which is based on xenophobia and contrary to international law, and strongly urges that the amendment be withdrawn immediately.
구속노동자후원회, 국제민주연대, 난민인권네트워크 [TFC(The First Contact for Refugee) 공익법센터 어필, 공익변호사와 함께하는 동행, 공익사단법인 정, 공익인권법재단 공감, 공익인권센터 드림 (DREAM), 국제난민지원단체 피난처, 글로벌호프, 난민인권센터(NANCEN), 동두천난민공동체, 동작 FM, 민주사회를 위한 변호사모임 국제연대위원회, 사단법인 두루, 수원글로벌드림센터, 순천이주 민지원센터, 아시아의 친구들, 아시아평화를향한이주MAP, 이주여성을위한문화경제공동체 에코팜 므, 이주민지원공익센터 감동, 외국인이주노동자인권을위한모임, 의정부 EXODUS, 이주민센터 친 구, 천주교 제주교구 이주사목센터 나오미, 재단법인 동천, 재단법인 화우 공익재단, 제주평화인권 연구소 왓, 참여연대, 파주 EXODUS, 한국이주인권센터], 대경이주연대회의, 생명안전 시민넷, 외국 인이주노동운동협의회 [남양주시외국인복지센터, 모두를위한이주인권문화센터, 부천이주노동복지 센터, 서울외국인노동자센터, 순천이주민지원센터, 아산이주노동자센터, 아시아인권문화연대, 외국 인이주노동자인권을위한모임, 원불교서울외국인센터, 의정부EXODUS, 이주민센터동행, 인천외국인 노동자센터, 파주샬롬의집, 포천나눔의집이주민지원센터, (사)한국이주민건강협회희망의친구들, (사) 한국이주여성인권센터, 한삶의집, 함께하는공동체], 이주민법률지원센터 모모, 이주여성인권포럼, 인권운동사랑방, 천주교 의정부교구 이주사목위원회