Fast-tracked to the House floor last week, HR 1464/S. 416 (“The North Korean Refugee Adoption Act of 2011”), a deeply flawed piece of legislation, passed the House. The goal of its backers is to push it quickly through the Senate before the pre-election session is over. Although framed as humanitarian in purpose, this legislation, modeled on a failed series of North Korean human rights bills that stretch back to 2003, proceeds from an outdated portrait of on-the-ground conditions as well as distorted premises.
Empirically speaking, the “North Korean refugee orphan” misrepresents the reality of the children whom the bill purports to help. As a placeholder for children who are, by and large, not North Korean, not refugees, and not orphans, the “North Korean refugee orphan” is a dangerous fiction whose elastic license with the truth imperils the welfare of the children this legislation stands to impact. The bill’s alarmist image of “thousands of North Korean children [who] are threatened with starvation or disease” does not correspond to the reality of the children who—although often poor and sometimes in the care of a grandparent—actually have families, are registered, attend schools, are relatively well-nourished, and are Chinese citizens. Strategically loose on the supply-side details, this bill risks instrumentally construing these children as adoptable when, in fact, they are not. Far from ensuring the best interests of the child, as specified by international protocols, including the Hague Adoption Convention to which the United States is signatory, the North Korean Refugee Adoption Act, if passed, will give legitimacy to practices that shift U.S. adoption policy toward child-laundering or trafficking.[i]
Initially introduced as part of the North Korean Freedom Act of 2003, this bill makes recourse to outdated language that describes the children in question as “stateless orphans” who are unregistered and lack access to education. In so doing, it fails to take into consideration the fact that, almost a decade later, circumstances on the ground in northeastern China have shifted. In the first place, the overwhelming majority of children this bill stands to impact have families. The bill further fails to distinguish between the few North Korean children (now adults) who have entered China with their families and the more numerous mixed-ethnic children (now 9-15 years of age) born in China to one Chinese parent, typically the father, and one North Korean parent, typically a North Korean migrant mother.
This bill nowhere mentions that the children in question are Chinese citizens.
Chinese law specifies that (1) “any person born in China…one of whose parents is a Chinese national shall have Chinese nationality” and (2) “any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality.”
In recent years, provincial and local authorities have permitted Chinese fathers to register their mixed-ethnic children without reporting on the status of the children’s mothers. In practical terms, this means that these mixed-ethnic Chinese children, born in China to North Korean mothers and Chinese fathers, are able to attend school and receive social services. Moreover, when surveyed, these children describe themselves—rightly so—as Chinese.
The bill violates the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption.
According to the Hague Convention, inter-country adoption shall take place only if competent authorities of the State of origin have established that the child is adoptable and have exhausted efforts to place the child within the State of origin. It is the duty of sending and receiving States (China and the U.S., respectively) to ensure that the child in question has been deemed eligible for adoption by the country of his or her birth (China and, to a lesser degree, North Korea).
By directing the State Department to find ways to move children from country to country without proper documentation and in circumvention of a sending country’s adoption protocols, this bill promotes rogue adoption operations and risks child-trafficking.
Diplomatically volatile and potentially offensive to the sovereignty of China and North Korea, this bill negatively affects our foreign policy on multiple levels within the region.
The bill aggravates our foreign relations with North Korea, a country with which the U.S. is still technically at war and does not officially recognize, by regarding it as a foreign sending country.
The bill requires our Secretary of State to work with China as a foreign sending country despite China’s steps in recent years to curb foreign adoption.
The bill instrumentalizes South Korean nationality laws, which recognize a North Korean defector mother upon her arrival in the south as a South Korean citizen who possesses the right to relinquish her child, while insufficiently accounting for the Chinese nationality of the mixed-ethnic child in question.
In effect, instead of “saving” orphans, the North Korean Refugee Adoption Act of 2011 will create “orphans” by legitimizing the movement of children across borders with little to no documentation—in essence, child-trafficking. Should this bill pass, it will contravene international standards for the protection of children’s legal and human rights to their birth families and nationalities. It will signal that for the U.S., the “best interests of the child” is a standard only in name, not in action.
*Prepared by KPI Fellows Christine Hong (email: chong@kpolicy.org) and Jennifer Kwon Dobbs (email: jkwondobbs@kpolicy.org). This research was supported by the He-Shan World Fund of the Tides Foundation.
[i] Although the United Nations High Commissioner for Human Rights acknowledges that “there is no universal instrument that addresses all trafficking in persons,” UNICEF includes in its definition of child-trafficking “movement that renders the child vulnerable.” See “Preamble to Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime.” See also UNICEF, “Note on the Definition of ‘Child Trafficking.'”
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