SUN Xiaodong* and ZHANG Botao**

 

 

Since the beginning of the 21st century, peace and development has become the main theme of the progress of human society. But at present, the international community is not living in peace, for tension has developed in some countries and regions, and a number of countries and regions have seen continuous war and conflict. Furthermore, these local conflicts and wars are intermingled with relations of economic interests between countries as well as the hegemonism of some big powers, thus presenting a new complexity. As important social relations which are regulated by the international and domestic legal systems, refugee relief and refugee status determination are important legal issues that need serious consideration.
 

A.The issue of refugee relief facing the international community 
 

The term "refugee" originated in France in 1753. At that time, France referred to the Calvinist as a "réfugié" who fled to France from Netherlands to escape the persecution of Spanish rulers. After the second half of the 17th century, the English word refugee originated from France came into use.¹ In the international context of the Cold War era, “the 1951 United Nations Convention relating to the Status of Refugees” first defined “refugee”. According to the definition of refugee outlined by the 1951 Refugee Convention, the term “refugee” is mainly used to refer to a person fleeing his home country from persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. But "refugees" mentioned today include not only the long-recognized refugees as defined in the Convention but also refugees fleeing from war and conflict, and environmental refugees. Since the beginning of the new century, the refugees caused by war and conflict have become the largest refugee group. Since a significant controversy exists over environmental refugees between governments and among the academia, this category of refugees will not be included in the refugees referred to in this article.
 

After World War II, conflicts still occurred continuously in some regions, for example, in economically poor regions such as the Middle East and Africa, wars broke out now and then due to resource and historical problems. According to UNHCR data, there were huge numbers of refugees in these regions, and environmental protection and human rights protection were also worrying. In the mid-1980s, the western countries sheltered a quarter of the global refugees, with Germany, the United States and Britain accepting relatively more refugees. The reason for this is that the refugee policy of these countries was relatively loose in that period, and many refugees also wanted to go to these countries. However, the growing influx of refugees placed a serious economic burden on these countries, as well as giving rise to a large number of social contradictions there, so that xenophobia in these countries was on the increase while the number of refugees admitted gradually decreased. In the new international situation, some developing countries have gradually become main refugee hosting countries. According to UNHCR statistics, by 2011, Pakistan had admitted as many as 1.7 million refugees, and had become one of the world's largest refugee hosting countries.
 

The problem of how to protect the growing number of refugees can not be solved by a single country. The massive exodus of large numbers of refugees from their home countries because of civil war or persecution by terrorist organizations was bound to have a negative impact upon the neighboring countries and even upon the entire international society, including a negative impact on national interests, economic development, peace and stability, and other aspects. According to the latest UNHCR statistics, from January to March 2015, there were a total of 221,572 asylum applications submitted worldwide, an increase of 43.8% over the same period in 2014.² Today, the refugee problem has become a hot issue of concern to the international community. In 2015, while the member states of the European Union were still fighting over how many refugees each country should accept, Sweden has been continuously receiving refugees from Syria, Afghanistan and Somalia.³ As can be seen, how to provide refugee relief for large numbers of refugees arising from armed conflicts or terrorist activities has been an issue of concern to the international community, and refugee status determination is also the key issue that needs to be addressed in the legal regulation of refugee relief.
 

B. The issue of refugee relief in China
 

Although such a realistic problem as large-scale influx of refugees has not yet happened in China until now, viewing from the modern history of China, we once received nearly 300,000 Indo-Chinese refugees, but of course the situation of refugee protection at that time was not optimistic. At present, China does not have a system of laws and regulations on the legal protection of refugees. However, in recent years, due to historical issues, the sovereignty dispute and diplomatic friction over oceanic islands have continued to occur in the South China Sea. In addition, along with changes in the international situation, terrorist incidents and wars have often occurred. Therefore, we need to have this awareness and be on the alert so that we can provide reliable help when China faces possible conflicts in the neighboring countries, and even anticipate the influx of refugees from relatively remote war areas, lest we should fail to come up with effective legal protection and assistance when humanitarian crises arise.
 

As compared with western developed countries, China has not yet paid enough attention to the refugee issue. On the one hand, historically China is not a major refugee hosting country. On the other hand, in the early stage of new China, China tended to hold a neutral attitude in international affairs. As the crisis in Ukraine, the conflict in the Middle East, and wars and violent terrorist attacks in Afghanistan, Iraq, Syria and other countries have emerged successively in recent years, there has been a substantial increase in the number of refugees. Such a large number of refugees, which itself is a manifestation of humanitarian crises and disasters, should arouse enough attention.
 

Since the founding of new China, the Chinese government has officially recognized the refugee status of foreigners within its territory, taken feasible measures for the massive humanitarian resettlement of refugees, and actively cooperated with UNHCR on refugee issues.⁴ Viewing from modern history, China is not one of the most preferred countries for refugees; and historically the refugee issue has not caused widespread concern in our society. However, under the background of the new international situation, the issue of refugee relief is attracting more and more attention. The Annual Report on Chinese International Migration, released in 2015, pointed out that China is becoming a refugee hosting country. For example, after civil war  broke out in Burma in 2009, there was a big influx of boundary residents in Myanmar's Kokang region into Chinese territory. In recent years, about several hundred people each year seek asylum at the UNHCR's offices in China. Since refugees in China now only account for a negligible proportion of China’s total population, even if the influx of refugees into China does occur in the future because of unstable international situation, the refugee issue will not have a substantial influence on the growth of China's socio-economic development. Although we do not have to worry too much about how much impact the refugee issue may have on our country and society in the future, in terms of education, competition for jobs, resource allocation and so on, it is still very necessary to improve the legal system of refugee relief and strengthen the legal mechanism of refugee status determination. This is not only a manifestation of China undertaking international obligations as a big country, and a specific implementation of the basic strategy of governing the country according to law, but it also reflects China’s respect for and protection of human rights. Only under the framework of a sound legal system, under which refugees get some protection in education, work and life, can the basic human rights of refugees be respected and protected.

 

 

Since China has acceded to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and ratified most of the international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the United Nations Convention Against Torture, the protection of the basic rights of refugees has been China's obligations under international law. But at present, China’s domestic law mainly contains the following provisions on refugees: Paragraph 2 of Article 32 of the 1982 Constitution provides: “The People’s Republic of China may grant asylum to foreigners who request it for political reasons.” Article 46 of the Exit and Entry Administration Law of the People’s Republic of China (2013) provides: “Foreigners applying for refugee status may, during the screening process, stay in China on the strength of temporary identity certificates issued by public security organs; foreigners who are recognized as refugees may stay or reside in China on the strength of refugee identity certificates issued by public security organs.” The five types of residence permits specified in Article 15 of the Regulations of the People’s Republic of China on Administration of the Entry and Exit of Foreigners promulgated by the State Council do not include the residence permit for refugees or asylum seekers. Therefore, for such problems as how refugee applicants should apply for residence or temporary identity certificates, what institution should decide on the status of refugees and according to what criteria, what treatment refugees should enjoy, and other matters of refugee resettlement, neither the laws nor regulations have explicit provisions.
 

At present, China’s mechanism to cope with refugee screening is as follows: Generally, the UNHCR offices in China conduct refugee screening for asylum seekers in China, and substantive decisions are taken in accordance with the provisions of the Constitution of UNHCR; those who are recognized as refugees may temporarily stay in China, and UNHCR will seek “durable solutions” for them. As can be seen, China’s legal system of refugee status determination has the following problems: Firstly, no explicit legal provisions have been made on the procedures for relief channels of refugee status determination, which are basically in a blank state. Secondly, UNHCR is, after all, limited in resources, so it can not establish, as does an independent sovereign state, a well-functioning legal system of refugee status determination in line with China’s actual conditions. Besides, UNHCR can not be equated with an independent judiciary, so in general, it can not provide full guarantee of procedural fairness as does a sovereign state.⁵ Therefore, judging from China's current situation, it is very necessary to establish a legal system of refugee status determination in line with China’s national conditions.

 

 

At present, refugees in China come mainly from neighboring Southeast Asian countries, and in the meantime, every year some asylum seekers from Africa, the Middle East, Asia and other regions submit asylum applications to the UNHCR offices in China. A large part of these refugees, totaling more than 200,000, most of whom are ethnic Chinese, fled to China during the Vietnam War in the late 1970s. Another part, about 2,500 Lao refugees and a small number of Cambodian refugees, came from refugee camps in Thailand in the 1980s. Many of these refugees have voluntarily returned to their home countries, but those who remain in China have well integrated into the local community.⁶ With the development and improvement of China's legal system, now China has established a relatively sound system of laws, and laws and institutions relating to the protection of human rights are also relatively complete. In this context, we should explore and study a legal system of refugee relief and a accompanying legal system of refugee status determination which fit China’s national conditions. In the current international and domestic situation, we can promote and improve China’s legal system of refugee status determination through the following measures:
 

A. Improve China's legal system of refugee status determination by steps 
 

China's current special laws and regulations on refugee status determination are mainly scattered in international treaties that China has acceded and in separate domestic laws and regulations. The perfection of China’s legal system of refugee status determination should not be radical, but it should be carried out steadily by steps. We should first refine and improve relevant laws and regulations in accordance with the current provisions of international law and domestic law. When conditions are ripe, then we can pass refugee law and establish the refugee determination system systematically.  
 

The perfection of China’s legal system of refugee status determination should be carried out according to the relevant principles of international law. Under the circumstance that there is no specific legislation in domestic law, we should follow the basic principles of international treaties joined by China in the development of the refugee determination system which suits China’s national conditions and protects our national interests. The Convention relating to the Status of Refugees, formally adopted in 1951, is the basis for current international laws and institutions on refugee protection. Its definition of “refugee” is: a person who is outside their country of citizenship because they have well-founded grounds for fear of persecution because of their race, religion, nationality, membership of a particular social group or political opinion, and owing to such fear, is unable to return to their home country. In February 1980, in response to a large-scale influx of Vietnamese refugees to China after the outbreak of the Sino-Vietnamese War, UNHCR established a representative office in China. Two years later, China formally joined the Convention relating to the Status of Refugees. In accordance with international treaties and international conventions, if a country is a signatory to the Convention relating to the Status of Refugees and its protocol, the government shall be responsible for screening and the grant of refugee status. It should be noted that the perfection of China’s refugee determination system should be in accord with the principles of these international laws. On this basis, specific standards, procedures and enforcement agencies will be established.
 

To improve China’s legal system of refugee status determination, we can first consider refining the existing legal provisions. Although at present, China has not yet established a system of laws, regulations and provisions relating to refugee status determination, relevant provisions can be found in the Exit and Entry Administration Law of the People’s Republic of China, the Rules for the Administration of Employment of Foreigners in China, Measures for the Administration of Accommodation Registration of Foreigners in the Public Security Police Station, and other laws and regulations. The Exit and Entry Administration Law of China provides: “Foreigners applying for refugee status may, during the screening process, stay in China on the strength of temporary identity certificates issued by public security organs; foreigners who are recognized as refugees may stay or reside in China on the strength of refugee identity certificates issued by public security organs.” 
 

So we can consider refining this provision in order to establish the criteria and procedures for refugee screening. Regulations such as the Rules for the Administration of Employment of Foreigners in China mainly regulate the employment of foreigners, so we can refine these regulations in order to specify the employment of refugees. Regulations such as Measures for the Administration of Accommodation Registration of Foreigners in the Public Security Police Station of China mainly regulate the accommodation and other related issues of foreigners, thus we can refine these regulations in order to specify the accommodation of refugees.
 

When the conditions are ripe, then we can consider introducing refugee law, and establishing systematic regulations on refugee determination system. Many countries have systematic and complete refugee law as well as legal provisions for refugee status determination to go with it, so as to regulate refugee relief systematically. With the maturity of various conditions, we should draw on the legislative experience of other countries to introduce refugee law of China, including the systematical design of refugee determination system.
 

B. Determine refugee screening agencies and rationally define their division of labor and powers 
 

Viewing from the specific design of refugee determination system of different countries, the agencies responsible for refugee status determination include both relevant agencies of sovereign states and UNHCR. In some countries, relevant government agencies cooperate with UNHCR in refugee screening. In accordance with international treaties and international conventions, if a country is a signatory to the Convention relating to the Status of Refugees and its Protocol, the government is responsible for granting refugee status.⁷
 

Viewing from the current situation of China, since the existing domestic legislation on refugees has not been perfected, the determination of refugee status is mainly undertaken by the UNHCR representative offices in China. In practice, due to essentially a lack of laws and regulations, almost none of the relevant agencies-in-charge participate in the specific refugee screening process.
 

In the short term, we should define through legislation the powers of the relevant agencies- in-charge and determine their division of labor rationally, so that these agencies can actually participate in the enforcement of refugee screening and assistance. At present, the management of refugees in China is divided and assigned to three agencies respectively: public security departments are responsible for the entry/exit administration and punishment of refugees, civil affairs departments the settlement of refugees in China, and departments of foreign affairs the coordination of joint efforts in treatment and repatriation of refugees. Through legislation, we can make clear the division of labor and establish a system where, led by public security organs, the three parties can collaborate to handle refugee relief.
 

According to China's national conditions, we can grant the specific authority to conduct refugee screening to public security organs, so that they will lead China’s refugee relief work, whereas civil affairs and diplomatic organs will collaborate and cooperate with them. The resulting system is as follows: public security departments are responsible for such issues as the determination and recognition of refugee status, civil affairs departments should be responsible for matters relating to the admission and resettlement of refugees, and departments of foreign affairs will be responsible for the coordination on issues of refugees. This operating system, where the three parties have a clear division of labor, clear responsibilities, and good cooperation and coordination, will be a highly efficient operational mechanism.
 

In the long run, when the conditions are mature, we can gradually establish a special agency in charge of the screening of refugees and related affairs. We can draw on the management experience of other countries to establish according to the law a special refugee law enforcement division, such as “the Refugee Council” and “the Administration for Refugee Affairs”, to be responsible for refugee recognition, refugee status review, and refugee admission and resettlement. In this case, a more efficient and effective operational mechanisms of refugee screening and assistance will be formed.
 

C. Undertake China’s international obligations and strengthen the international cooperation in refugee relief
 

The proper settlement of the refugee issue depends largely on the coordination and cooperation between countries. The refugee issue China may face in the future need more pragmatic cooperation among countries. With the development of the global economy, the pragmatic cooperation among countries is more conducive to the settlement of the refugee issue. The improvement and development of China’s refugee determination system should be considered in the context of strengthening international cooperation.
 

In the protection of the rights of refugees, the promotion of democracy and freedom in the world is an essential way to eliminate the creation of political refugees.⁸ In the process of fulfilling the obligations to protect refugees, the practice of developed countries is different from that of developing countries, and they have the advantage of resources; therefore, they should invest more funds and relief materials, in order to maintain the health and safety of refugees. Although developing countries can only offer limited help in the economy, they should also actively provide temporary solutions for the large influx of refugees.
 

Therefore, the development and improvement of China’s system of refugee relief and refugee status determination should be carried out under the framework of strengthening cooperation among countries. First, as a big developing country, we should undertake the responsibility and obligation of a big country, establish the relevant systems, actively participate in the establishment of international cooperation among countries, and cooperate with other countries of the world in joint efforts. In the initial stage of regional conflicts, China should carry out legitimate and effective coordination and interventions with other countries as soon as possible, so as to mediate the disagreement between the conflicting parties and minimize the risk of conflict. Second, China should carry out multilateral negotiations and participate in the formation of the international legislation on refugee protection. In terms of the system of refugee relief and refugee screening, China should pay attention to the coordination between international law and domestic law. It should not only attach importance to undertaking its obligations under international law, but it should also make practical and feasible legislative choices in line with China’s national conditions and its actual development. 

 

(Translated by Ou Xiaoqi)