China and Refugee Law

by

Guofu Liu, Mei Yang

• LAST REVIEWED: 11 January 2024
• LAST MODIFIED: 11 January 2024
• DOI: 10.1093/obo/9780199796953-0253

Introduction

From 1949 to the 1980s, China protected over 320,000 returned persecuted overseas Chinese from Malaya, Thailand, Myanmar, Vietnam, Japan, Indonesia, India, and Mongolia, and over 280,000 Indochinese refugees from Vietnam, Cambodia, and Laos, who were expelled by residing countries because of anti-Chinese policies. Since the 1990s, some North Koreans illegally mi ated to Northeast China, mainly due to famine. Since 2009, tens of thousands displaced border residents of Myanmar have fled to China because of armed conflicts. The legal status of North Korean illegal immigrants and Myanmar displaced border residents is debatable. For complicated reasons, the protection of refugees and persons of concern is regulated by policy. The focus of the settlement policy used in the 1950s and 1960s was that settlement should focus on rural areas, with priority given to centralized settlement. The focus of the settlement policy of Indochinese refugees developed to centralized settlement in overseas Chinese farms. Eighty-four overseas Chinese farms were established mainly in Guangdong, which have been reformed since 1990s with the aim of integration into the local community, society, and market economy. China has had international cooperation regarding refugees with the international organizations and countries since 1979, when the UNHCR began working in China. In the absence of domestic refugee law in China, the UNHCR registers asylum seekers, carries out refugee status determination, and seeks durable solutions. The main direction for China to participate in global refugee governance is under the UN. Provisions of China’s domestic law on refugees are largely concentrated on the constitutions and the exit and entry administration laws. The Exit and Entry Administration Law 2012 is China’s first piece of legislation to include a provision specifically dealing with refugees. China acceded to the Convention Relating to the Status of Refugees (1951), and to many human rights conventions, which laid a solid foundation for China to protect refugees and persons of concern. With the growth of national strength, China will make more contributions on global refugee governance and protect refugees and persons of concern by law. Additionally, academic works on Hong Kong, Macau, and refugee laws are not covered by this bibliography because both Hong Kong and Macau have independent refugee legal systems. Likewise, the article does not include academic works on overseas Chinese who went back to their homes in Southeast Asia from mainland China during the Cold War, and how they are persecuted, as they are mainly governed by refugee laws in the destination countries and regions, not Chinese refugee law. This research is funded by the Danish National Research Foundation Grant no. DNRF169 and conducted under the auspices of the Danish National Research Foundation’s Centre of Excellence for Global Mobility Law.

Introduction to China’s Refugee Law and Policy

According to differentia of administration authority, refugees in China can be divided into two categories. The first category of the refugees in China is the farmer and fishery refugees who were returned persecuted overseas Chinese and refugees with Chinese ethnicity received by China’s government and settled in overseas Chinese farms. The second category of the refugees in China is the urban refugees who are asylum seekers and refugees without Chinese descent, who are registered and identified by the UNHCR China Office and settled in urban areas. Overseas Chinese farm refugees were separately returned to China in large-scale influx situations from Malaya, Thailand, Myanmar, Vietnam, and Japan in the 1950s; from Indonesia and India in the 1960s; from Vietnam, Cambodia, and Laos in the 1970s; and from Mongolia in the 1980s—as well as displaced border residents from Myanmar since 2000. Refugee law is quite a new academic field in China, as there is no special refugee law in China. In contrast to the rich academic works on international refugee law, developed countries’ refugee law, and European Union’s refugee law, academic works on Chinese refugee law are scarce. Despite the long-standing interest in the legal doctrine and the existence of over 300,000 recognized refugees in China, Chinese refugee law is not always acknowledged as a branch of Chinese law in its own right, due to complicated political, economic, and social factors. However, the last decade has witnessed a growing awareness of the need for protecting refugees as well as international cooperation between China and international organizations and other countries. As a result of such expanding interest, some books have been published that map this emerging field of Chinese refugee law. Liu 2020 constitutes an in-depth and comprehensive analysis of Chinese refugee law. Liang 2009 is an introductory text, whereas Song 2020 is more substantial. Due to complicated political, economic, and social factors, the protection of refugees and persons of concern is regulated case by case. The target for Chinese refugee policy is mainly returned persecuted overseas Chinese. Academic works on Chinese refugee policy is normally covered by works on returned persecuted overseas Chinese. Compared with the scarce academic works on Chinese refugee law, academic works of Chinese refugee policy are greater in number and more substantial. Soboleva 2021 discusses the evolution of China’s refugee policy from the 1950s to 2018. Long 2010 and Huang 2005 separately focus on the policy of returned persecuted overseas Chinese from 1949 to 1979, and from 1949 to 2004, respectively. Peterson 2012 turns to the multiple and contradictory meanings associated with returned overseas Chinese. Zhang 2010 provides analysis of the policy of returned persecuted overseas Chinese.

• Huang Xiaojian. The History and Current State of Returned Overseas Chinese (Guiguo Huaqiao De Lishi Yu Xianzhuang 归国华侨的历史与现状). Hong Kong: Hong Kong Publishing House of Social Science, 2005.

  A leading book on the history of returned persecuted overseas Chinese from 1949 to 2004.

• Liang Shuying. International Refugee Law (Guoji Nanmin Fa 国际难民法). Beijing: Intellectual Property Press, 2009.

  Includes a chapter on “The Practice of Protection and Supports on the Refugees in China,” discussing refugee protection in China, particular the receiving and settlement of Indochinese refugees in China (pp. 252–307).

• Liu Guofu. Chinese Refugee Law. Leiden, The Netherlands, and Boston: Brill Nijhoff, 2020.

  DOI: 10.1163/9789004412187

  An authoritative book studying refugee rights as they are spelled out in the Convention Relating to the Status of Refugees (1951), as well as in relevant provisions of the Chinese Constitution and domestic laws. It goes as far as proposing, in its final recommendation, drafting a Regulations on Refugees (proposal by scholars).

• Long Yundi. “Review on the Resettlement Policy for Returned Persecuted Overseas Chinese over Three Decades since the Founding of the People’s Republic of China based on Guangdong Province’s Archives (1949–1979)” (Cong Yuedang Wenxian Kan Jianguo Sanshinian Guinanqiao Anzhi Zhengce [1949–1979] 从粤档文献看建国三十年归难侨安置政策). Overseas Chinese Journal of Baigui 24.4 (2010): 36–40.

  A special paper based on declassified documents held by the Archives of Guangdong Province, reviewing the policy of persecuted returned overseas Chinese from 1949 (the founding of People’s Republic of China) to 1979 (the start of reform and opening policy).

• Peterson, Glan. Overseas Chinese in the People’s Republic of China. New York and London: Routledge, 2012.

  This work typically uses the term “domestic overseas Chinese” rather than “returned overseas Chinese” to examine their experiences from transnational and political contexts.

• Soboleva, Elena. “China and the Refugee Dilemma.” In Immigration Governance in East Asia: Norm Diffusion, Politics of Identity, Citizenship. Edited by Schubert Gunter, Franziska Plümmer, and Anastasiya Bayok, 155–178. London and NewYork: Routledge, 2021.

  A systematic discussion of the evolution of China’s refugee policy from the 1950s to 2018, and the effectiveness of different mechanisms in transmitting norms established by international law to China’s national context.

• Song, Lili. Chinese Refugee Law and Policy. New York: Cambridge University Press, 2020.

  DOI: 10.1017/9781108669474

  Book chapters completely introduce Chinese refugee law and refugee policy in mainland China, paying special attention to refugees and other displaced foreigners in China, the legal framework for refugee protection in China, and treaties regarding refugees in China.

• Zhang Qianqun. The Study of Chinese Qiaowu Policy (Zhongguo Qiaowu Zhengce Yanjiu 中国侨务政策研究). Beijing: Intellectual Property Press, 2010.

  Chapter 4 of this book, “The Relief and Settlement of Returned Persecuted Overseas Chinese,” introduces and critically analyzes the policies and measures of the relief and settlement of returned persecuted overseas Chinese up to 2009 (pp.189–216).