Despite the adoption of the Universal Declaration of Human Rights that professed to acknowledge the intrinsic “inalienable rights” of every human being, human rights are not observed universally in reality. Even after the 1951 Refugee Convention and the 1967 Refugee Protocol, a number of refugees across the world are deprived of human rights, including the case of North Koreans who reside in China. While the governmental policies of North Korea, China, and South Korea sanction legal protection of human rights of North Koreans in China, in actuality, there has been a gap between the official language of the policy and its practice. The selective and insufficient immigration laws and policies do not grant a refugee status to North Koreans who reside in China, which places the North Koreans in a precarious position as “stateless” people who cannot claim human rights due to their lack of political membership. North Korean stateless women who reside in China are especially vulnerable as they are exposed to human rights violation crimes including human trafficking because of their illegal status. Furthermore, They lack legal recourse for the protection of their basic human rights (i.e. the right to freedom, healthcare, employment) as well as civil and political rights (i.e. the right to protection, the right of participation in society). In order to alleviate the situation, politically-related countries must cooperate globally to promote institutional changes such as improved immigration law and policy. With this context in mind, this paper utilizes Habermas’ discourse ethics to critique this reality where the stateless, and North Korean stateless women in particular, cannot have a right to belong to any community, cannot receive protection from the law, and cannot participate politically, and therefore become subject to extreme vulnerability. Furthermore, I argue that discourse ethics can provide the grounds and legal foundation for a more inclusive conception of political membership that protects those with an unstable status without ignoring or damaging national security and social integrity.
In this paper, I will first introduce the concept of discourse ethics, and then the contemporary understanding of belonging that excludes stateless people from a contract of citizenship, by drawing from a case study of North Korean female refugees residing in China. Then I will show how discourse ethics not only identifies the exclusionary nature of citizenship but also necessitates the construction of social norms that would be attentive to the stateless people’s particular vulnerabilities and treat them as equal participants.
Habermas’ discourse ethics, although borrowed and adapted from Kant’s categorical imperative, moved away from Kant by extending Kant’s tenet to include all those affected by the discourse. Kant’s categorical imperative requires a monological application of individuals who ponder upon norms and ascribe as valid for everyone any maxim that he or she would be a universal law, attempting to avoid the possibility of different obligations conflicting with one another. On the contrary, Habermas draws from and expands upon the conception of “communicative rationality,” claiming that our everyday intuition “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech.” For Habermas, “moral claims are made in the very structure of practical discourse itself,” and they can be “valid” when they “meet (or could meet) the approval of all affected in their capacity as participants in a practical discourse.” Furthermore, discourse ethics stresses the free participation of all those who participate in the real-life discourse of constructing moral norms. In this sense, discourse ethics diverges from Kant’s deontological, transcendental and monological approach to a procedural, practical, and intersubjective perspective. Rather than fixed norms becoming the ethical center that individuals can act on without any contradiction, rational individuals as subjects become the center of discourse ethics, under conditions where they can make agreements through communication in real life.
To this end, discourse ethics emphasizes the criteria of impartiality, intersubjectivity, and procedural justification. In discourse ethics, the rationality of consent is given to everyone who is affected by the norm, equally and free from the effects of power. It furthermore insists on real everyday situations and dialogue in which impartial consent occurs, rather than a hypothetical thought, as stated in the principle of universalism: “All affected can accept the consequences and the side effects its general observance can be anticipated to have for the satisfaction of everyone’s interests.” The notion of impartiality is discovered here, contrasting with the Kantian approach where valid norms come from the “perspective of some and not all concerned.”
As all affected individuals are involved in communication as participants and move toward understanding and agreement, discourse ethics stresses consideration of each participant’s particular context. Since contexts continue to change under the influence of history, society, and culture, and each human being—one’s feelings, intellect, interests, needs, and actions—transforms as well depending on the context, the uniqueness and diversity of each participant and the contexts surrounding him or her should be taken into account in everyday life. In this sense, discourse ethics argues for constructing social conditions for treating everyone as equal rather than for identical treatment of everyone. To be specific, it aims at conditions where every affected person is respected as a participating moral agent in a community and treated with consideration of their particular contexts and vulnerabilities. In addition, in order for differences and particularity to be understood, each person’s reciprocity in dialogue and other forms of communication are crucial and must be upheld. An argumentation is “rooted” in the reciprocities that undergird the “mutual recognition of competent subjects,” and the argumentation takes its form of “action orientation toward reaching an understanding” from agreements of individual actors. The notions of impartiality and intersubjectivity are meaningful in providing the grounds for the socially vulnerable like refugees and asylum seekers to be recognized as actual participants of a society, whose particular contexts are considered in constructing social norms.
Moreover, respect for particularity and reciprocity explains the procedural nature of discourse ethics and its openness for re-interpretation. Rather than preventing or denying the possibility of conflicts in favor of establishing generalized and fixed norms, discourse ethics accepts conflicts as natural in practical life and regards them as the source of openness towards “reaching a consensus.” It reveals its procedural nature in its justification, based on its principle of universalization and the criterion of impartiality in the process of testing the validity of hypothetical norms in communicative practice with attentiveness to particularity and variation in content.
The characteristics of discourse ethics stated above force us to disclose and re-evaluate the contemporary understanding of belonging that excludes non-citizens. The contract of citizenship as a contemporary social norm remains exclusive to those who do not belong to a national community, making the stateless underprivileged and right-less. Among different types of the stateless, stateless females are exposed to extreme vulnerability due to gender discrimination. Their limited working opportunities with gender inequality and lack of legal support for human rights violations in destination countries contributes to female workers’ involvement in irregular work and illegal businesses such as human trafficking. I would like to explore the case of North Korean female refugees in China as a group of people who are excluded from the protection of citizenship due to their illegal status and who are also subject to exploitation from their voluntary and involuntary involvement in cross-border human trafficking.
Regarding the causes of the female refugees’ vulnerability to trafficking, the primary cause is the desperate economic fragility in North Korea that forces North Koreans to seek survival by any possible means, including selling family members or brokering marriages to unknown Chinese men, so the refugees can financially support their families. Also, China’s one-child policy, which has in no small part caused Chinese families’ tendency to prefer a male child in order to carry on the family inheritance, has reduced the already insufficient number of women suitable for marriage. As an alternative, a growing number of Chinese men have been driven to look for brides outside of Chinese ethnicity or heritage, including North Korean brides from traffickers. And the increasing demands of sex-related businesses in China’s large cities have facilitated trafficking of North Korean female refugees in China.
One of the most common forms of the trade is that traffickers, as marriage brokers, deceptively promise the refugees a better life in China through marriage to a Korean-Chinese or Chinese man. However, the refugees are often unknowingly married to disabled, abusive, and/or poor husbands. Moreover, they are often abandoned by the husbands and resold to different men either by the husbands or the brokers, even multiple times. In addition, traffickers often lure the refugees with deceptive promises of employment opportunities in China, mostly in positions such as factory workers or maids, being aware of their desperate financial need.
The trafficked North Korean refugees become situated in a vulnerable status, undergoing not only human rights violations but also severe physical and psychological domestic violence. The difficulty is that the refugees cannot escape or report the reality because of their illegal status in China. Once the victims are caught by Chinese officials, they are criminalized and sent to a jail or a detention facility at the North Korea-China border where they are subject to body searches, torture, and sexual assault. They are afterward sent back to North Korea and sometimes even expelled as the state’s enemies, which makes them vulnerable to re-trafficking.
The domestic and international efforts to be attentive to and to oppose the trafficking of North Korean female refugees and their human rights violations is passive and minimal in general without active social recognition of the reality nor social guarantee for implementation of human rights policy. Domestically, the North Korean government does not acknowledge the occurrence of human trafficking along the North Korea-China border. Internationally, the Chinese government continues to deny its responsibility to improve the trafficking issue by not acknowledging in principle North Korean escapees as refugees but claiming them as economic migrants. Furthermore, the United States government has been continually condemning North Korea’s minimal anti-trafficking standards, but has not actually penalized North Korea for human trafficking or actively sought improvement of the issue. This reality of North Korean female refugees is one example of the exclusive nature of the contract of citizenship in the contemporary society where an increasing number of stateless people are subject to extreme vulnerability. Their vulnerability is twofold in that they are not only deprived of the right to belong to any community and therefore also of legal protection of human rights, but they are also exposed to gender inequality and sexual oppression.
With regard to this issue of the right to belong across the world, Habermas’ discourse ethics contributes to recognizing, problematizing and correcting the exclusionary nature of citizenship and calls for a more inclusive notion of membership. To be specific, the universalization principle that emphasizes free and autonomous participation of everyone who is affected in everyday discourse brings our attention to the fact that stateless people, including illegal migrants such as refugees, as part of those who are “affected,” should be guaranteed free and autonomous agency for socio-political participation as members of real-life discourse in the receiving countries.
In addition, as discourse ethics places emphasis on the balance between autonomy and reciprocity, and appreciation for each individual’s particularity in the balance, it urges us to attend to the particular vulnerabilities of stateless people and to create social conditions where they can exert equal participation in society as moral agents. The establishment of such social conditions is possible only when the governments of politically-related countries grant certain types of political membership to stateless people so that they can have a legal foundation to claim their human rights as non-citizens. To this end, discourse ethics urges us to pursue a more inclusive, cosmopolitan conception of political membership to protect those with an unstable status without ignoring or damaging national security or social integrity. The foundation of such membership will prevent the socially marginalized and vulnerable populations from being controlled or disadvantaged by the power dynamics of domestic and international politics.
Furthermore, the procedural nature of discourse ethics offers ways to re-evaluate current social structure with openness for future correction, rather than providing substantive established social norms. Social norms such as an immigration and refugee policy for human rights protection can possibly be modified or even radically changed depending on the socio-political and economic situation of a society and the particular contexts of the migrants. Considering each person’s particular context in discourse ethics leaves the possibility for re-interpretation and revision of moral norms, which are to be pursued as an ongoing process in intersubjective dialogue.
Despite the drastic growing number of migrants across the world with increased opportunities and ways for migration, implementation of human rights is deeply limited to those possessing citizenship. North Korean female refugees are an example of stateless people who are deprived of “the right to belong” to a community and who are exposed to the threat of survival under oppression and abuse, under the influence of complicated political interests of related countries. Habermas’ discourse ethics provides the grounds for recognizing and questioning the exclusionary and distortive aspects of the contract of membership and is attentive to the needs for social norms that will treat every participant of society as equal. It reveals that the creation of such social conditions will become possible only when all participants including refugees, asylum seekers and other types of immigrants can freely exercise political rights under the legal protection of the right to belong, in mutual understanding through dialectic communication.
Isil Yoon, Doctoral Candidate
Graduate Theological Union, Berkley, California
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 Thomas McCarthy, The Critical Theory of Jurgen Habermas (Cambridge, MA: MIT Press, 1981), 324.
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 Ibid., 65.
 Banerjee, “Re-theorizing Human Rights through the Refugee,” 28.
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 Ibid., 103.
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 Ibid., 30.
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