Comparison between International Instruments on Statelessness and the Korean Laws: Commissioned by the UNHCR Representation in Republic of Korea*

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1 P31 56 P5 20 Comparison between International Instruments on Statelessness and the Korean Laws: Commissioned by the UNHCR Representation in Republic of Korea* Hong-Yop Choi ** Abstract While the Republic of Korea became a signatory to the Convention relating to the Status of Stateless Persons in 1962, the country has failed to implement measures to execute the Convention. Therefore there are significant gaps between the 1954 Convention relating to the Status of Stateless Persons and the domestic laws and regulations. For proper implementation of the Stateless Convention, not a few points should be reflected to the domestic law. There are needs to establish legal framework covering requirements to recognize stateless persons, recognition procedure, and an agency with the jurisdiction for recognition. Those who are recognized as stateless persons should be provided with status of stable sojourn according to the Immigration Control Act. Legal revisions are required so that those who are recognized as stateless persons are excluded from reciprocity regardless of the period of sojourn within the territory. In the meantime the paper deals extensively with the comparison between the Convention on the Reduction of Statelessness and the relevant Korean laws and between the children s rights to be registered, to a name and to a nationality and the situation under the Korean law. The birth registration process of a newborn in Korea does not take into consideration of possibility of a stateless father or a mother. Fundamental response can be establishment of procedures where birth of all children of foreign parents including stateless persons is allowed to be registered. Keywords: Stateless Persons, Non-citizen(foreigner), 1954 Convention Relating to the Status of Stateless Persons, 1961 Convention on the Reduction of Statelessness, Report of Marriage, Identity Papers * This is an English translation of the author s paper, Comparison between International Instruments on Statelessness and the Korean Laws, which was featured in Democratic Legal Studies vol. 41 (November 2009) after some modification. Sincere gratitude is extended to UNHCR Representation in the Republic of Korea for its support on this paper. Views expressed in this Comparison are not necessarily those of UNHCR. ** Professor Choi, Hong-Yop. Director, The Legal Studies Institute of Chosun University (375 Seosukdong, Dong-gu, Gwangju, , Republic of Korea), Tel: Fax: , yop21@mail.chosun.ac.kr.

2 32 Korea Review of International Studies I. Objective Most of us are conscious of our nationality when we travel abroad or watch an international sports game. We do not lead our daily lives thinking about nationality. For some, however, nationality is something that is always around and often causes serious problem. 1 They are the stateless. While nationality provides identity to individuals and provides the qualification to enjoy the right for national protection and other civil and political rights, 2 the stateless persons do not have any nationality. As the stateless persons do not have any residence or alien registration, they cannot be engaged in any official property transaction. Even if they were to make a deposit to a bank or buy/sell a real estate, inability to confirm their identity prevents them from engaging in a normal transaction. They don t have proper access to social insurance and therefore cannot be covered by health or other insurance. One of the important international instruments regarding the status of the stateless is the Convention relating to the Status of Stateless Persons. The main purpose of the Convention, which was adopted in September 28, 1954 and effective from June 6, 1960, is to assist the stateless persons to enjoy basic rights and freedom. The parties to the Convention are The Convention calls for special attention as South Korea is a party to it. Korea adhered to Convention without any reservation on August 22, 1962, right after it became effective and has been under its application from November 20, 1962, 90 days from the adhesion. 4 Despite Korea being a signatory to the Convention, the Korean government and the National Assembly alike have failed to implement any measure to fulfill the Convention. This is in contrast to the efforts, though insufficient, made by Korea after it ratified the Refugee Convention. The purpose of the study is to compare international conventions regarding stateless persons and relevant Korean laws, to be used as a reference for the country to prepare for implementation of relevant measures. With increasing social awareness on the importance of the statelessness, the study will be able to contribute the burgeoning discussion in a more structured direction. Another relevant international instrument is the Convention on the Reduction of Statelessness. 5 While the Convention relating to the Status of the Stateless Persons is to 1 Goris, Indira, Julia Harrington, and Sebastian Köhn. Statelessness: what it is and why it matters, Forced Migration Review 32, 2009: 4-6, 4. 2 UN High Commissioner for Refugees Seoul Office. Nationality and Statelessness: A Handbook for Parliamentarians (Korean Version). Switzerland: Presses Centrales de Lausanne, 2005: 2. 3 As of October 15, = TREATY &mtdsg_no = V~3&chapter = 5&Temp = mtdsg2&lang = en. 4 Relevant clause includes Article 39. Entry into force of the Convention relating to the Status of Stateless Persons. Paragraph 1: This Convention shall come into force on the ninetieth day following the day of deposit of the sixth instrument of ratification or accession. Paragraph 2: For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day following the date of deposit by such State of its instrument of ratification or accession. 5 Convention on the Reduction of Statelessness.

3 Comparison between International Instruments on Statelessness and the Korean Laws 33 guarantee the basic status of the stateless persons, the Convention on the Reduction of Statelessness is to prevent statelessness from occurring as much as possible. Discussion on the Convention on the Reduction of Statelessness 6 started with the August 1950 request by the UN Economic and Social Council (ECOSOC) for the International Law Commission to draft an international convention to eliminate the statelessness. It was adopted in The articles of the Convention intend to prevent the occurrence of statelessness from birth, 7 and also aim at reducing the stateless persons in the area of provision of nationality, loss and renunciation of nationality, deprivation of nationality, and surrender of territory. The study also aims at analyzing the difference between the Convention on the Reduction of Statelessness and the relevant Korean laws in order to clarify the gap between the 1961 Convention and the Korean law when the country decides to ratify or to become a signatory to the Convention in the future. II. Comparison between the 1954 Convention and the Korean Law 1. Considerations The lack of ensuing legislative move for domestic implementation of the 1954 Convention is one of the most serious problems. Major domestic laws and regulations on the status of stateless persons include the Immigration Control Act, the Nationality Act, the Framework Act on Treatment of Foreigner in Korea, and the Act on Multicultural Family Support, but none of the above instruments recognizes the 1954 Convention. This is in stark contrast to legislative measures taken to revise the Immigration Control Act after Korea became a signatory to the Convention Relating to the Status of Refugees. Protection of stateless persons begins with inclusion of stateless persons in the definition of foreigners in various legal instruments. Scholars view that stateless persons as well as those who do not have nationality of Korea but of other country are foreigners, and thus there is no objection to the notion that stateless persons are included in foreigners. 8 However, as stateless persons do not have any nationality as opposed to others with foreign nationality, it needs to be more actively stipulated that stateless persons are indeed foreigners. For example, while foreigner s registration card or passport works as a residence identification of the nationals in applying the domestic law, the stateless persons do not have such identification. This makes it difficult for them to be treated as foreigners. Therefore, stateless persons should 6 The Convention was adopted in August 30, 1961 and became effective since December 13, With Brazil became the latest signatory to the Convention in 2007, the parties to the 1961 Convention is 37 and Korea is yet to become one. As of October 15, = TREATY &mtdsg_no = V-4&chapter = 5&lang = en. 7 UN High Commissioner for Refugees Seoul Office. Nationality and Statelessness: A Handbook for Parliamentarians (Korean Version). Switzerland: Presses Centrales de Lausanne, 2005: Lee, Han-Ki. Lecture on International Law. Seoul: Parkyoungsa, 1996: 423; Kim, Chul-Soo. Introduction to Constitution. Seoul: Parkyoungsa, 2000: 272, etc.

4 34 Korea Review of International Studies be classified and treated as conventional foreigners, which requires a written stipulation to allow classification of stateless persons as foreigners and to provide them with treatment generally available for foreigners. Most laws go as far as defining that [a] foreigner shall mean a person who does not have the nationality of the Republic of Korea as is the case of the Immigration Control Act (Article 2.2 of Immigration Control Act). Article 3 of the Nationality Act, Article 2.1 of the Framework Act on Treatment of Foreigner in Korea and Article 2 of the Act on Employment of Foreign Laborers, etc. stop at defining as those without nationality. An alternative phrase may be a foreigner shall mean a person who does not have the nationality of the Republic of Korea and shall include foreign national and stateless person. One step further shall be procedures to recognize stateless persons as follows. As it is not a simple task to identify who are stateless persons, it is necessary to have a clear set of procedures to recognize stateless persons. 2. General Provisions (Chapter I) and Domestic Law 2.1 Definition of stateless persons in Article 1 of the 1954 Convention 9 The definition of stateless person is not reflected in the Korean legal system, even less its determination process. The same goes for other laws affecting foreigners including the Nationality Act, the Framework Act on Treatment of Foreigner in Korea and the Act to Support Multicultural Family. While Article 20 of the Nationality Act stipulates the procedures for nationality adjudication, the procedures are to identity those who have Korean nationality not to recognize a stateless person. 10 As for refugee, Article of the Immigration Control Act says The term refugee means a person to whom the Convention relating to the Status of Refugees applies under Article 1 of the Refugee Convention and Article 1 of the Protocol relating to the Status of Refugees. It is only reasonable to have equivalent clause on stateless person. As Article 1.1 of the 1954 Convention refers to de jure stateless persons, it would be even more desirable if the definition includes de facto stateless persons. As Article 1.1 of the 1954 Convention relating to the Stateless covers only the de jure stateless persons, de jure stateless persons should be protected according to the law as stateless persons. It is even more desirable to have a legal foundation to provide assistance for de facto stateless persons. While definition of the stateless person is contentious, stateless person determination procedures including the competent authority is also important. Legal provisions should 9 All articles and chapters below refer to those from the Convention Relating to the Status of Stateless Persons. 10 The existing nationality adjudication process makes two decisions only: decided or unable to decide. Those who cannot be decided to own Korean nationality could be because of different situations (those who are found to possess foreign nationality, those who are suspected to possess foreign nationality but without any verification, or those who cannot establish any connection with any other state) but are not differentiated. For more details, refer to Jung, In Seop, Jung Hae Park, Chulwoo Lee, and Ho Taeg Lee. The Treatment of Stateless Persons and the Reduction of Statelessness: Policy Suggestions for the Republic of Korea. Ministry of Law, 2009: , 171.

5 Comparison between International Instruments on Statelessness and the Korean Laws 35 be implemented on the requirements, process and competent agency of recognizing stateless persons. 11 For example, the issues in Korea include revocation of Korean nationality due to phony marriage or nationality of North Korean defectors. 12 EU directives on definition guidelines and determination procedures of stateless persons may be used as reference. One option is to establish relevant provisions as is the case with Spain and France. In such case the agency responsible for refugee status determination may also be entrusted to recognize stateless persons. As those who are recognized as stateless persons in Korea should be guaranteed to stay within the territory in a legal and stable manner, they should be provided with the status of long-term sojourn (for example, F-2 visa) should be granted. 13 Those who are not clearly recognized as stateless persons yet should be granted with visa that enable them to stay within the territory. 14 <Reference> Stateless person determination procedures of EU of the 15 member states 16 of the European Union are party to the 1954 Convention. Definition of the stateless person in Article 1.1 of the Convention is generally applied to the legal systems of those countries. The legal systems of some member states permits the direct application of international instruments while others including Germany and Italy have enacted ratification laws making the Convention part of the national law. Some EU member states, though lacking specific legislations establishing a procedure, nevertheless have an authority, either administrative or judicial, that has competence for recognizing that an individual is stateless, while Spain has a specific procedure for stateless person determination. According to the Spanish Alien Act has a sub-legislative act dedicated to defining a procedure by which the designated authority may examine an application for recognition of stateless status. 11 Refer to the above study by Jung, In-seop and others, 2009: 22, For various cases in Korea, refer to Park, Ki-Gap. Existing Korean nationality law and its conformity with the international standards and potential to contribute to statelessness, in; Workshop on the Relationship between the Korean Nationality Law and the International Instruments regarding Statelessness, edited by Korea University, UNHCR and ILA Korea, Seoul: Korea University, 2008: 66-67; Balde, Mamadou Dian. Potential statelessness cases in the Republic of Korea, in; Workshop on the Relationship between the Korean Nationality Law and the International Instruments regarding Statelessness, edited by UNHCR and ILA Korea, 2008: 51; Choi, Hong-Yop. Legal Status of the Stateless Persons and Recent Cases in Korea, Chosun Law Journal 15(2), 2008: ; Jung, In-sup and others, Op.cit., Professor Jung, In-sup and others stated that those who are recognized as stateless persons should be provided with stable sojourn status by granting F-2-5 visa (long-term sojourn). Jung, In-seop and others, Op.cit., 2009: Some argues that persons of unknown nationality who are de facto stateless should be granted with G1 visa that allows gainful employment and can be renewed every year (Jung, In-sup and others, Op.cit., 2009: ). This measure proposes to allow persons of unknown nationality who are de facto stateless to possess the status of sojourn and employment which needs to be renewed every year. 15 UN High Commissioner for Refugees. The 1954 Convention relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization, October available at: [accessed 22 April 2009]. 16 The number increased to 27 recently.

6 36 Korea Review of International Studies The Aliens Law provides that the Minister of Interior will recognize as stateless those foreigners who meet the requirements of the 1954 Convention, and grant status accordingly. The procedure for doing this is regulated by a Royal Decree. In France, a procedure for the recognition of statelessness status exists within the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides (OFPRA)), although it is not regulated by a legislative or sub-legislative act. The French Law gives OFPRA the mandate to provide for the juridical and administrative protection of stateless persons. 2.2 Article 2, 3, 4 and Execution Article 2 General obligation of the Stateless Convention is only natural so that it will not be necessary to add this clause to the domestic law. Adding general requirements in the establishment of domestic laws for its execution may make the legislation easier. Article 3 Non-discrimination of the Stateless Convention will be beneficial if it is a part of the domestic law but it is not mandatory. For, the principle of equity is interpreted to be guaranteed by the National Constitution of the Republic of Korea and the relevant laws. As Article 11.1 of the National Constitution starts with such phrase as All nationals are equal in front of the law, some view that only the nationals are eligible for the right to equality. However, the majority theory and precedence makes foreigners eligible for the right to equality. 17 Also, Articles 4 and 30.2 of the National Human Rights Commission Act clearly stipulates that foreigners are also subject to the right to equality. A separate clause on Article 4 Religion will be beneficial. 2.3 Article 7 Exemption from reciprocity Article 7.2 of the Stateless Convention states After a period of three years residence, all stateless persons shall enjoy exemption from legislative reciprocity in the territory of the Contracting States. Also, the Contracting States shall provide such rights and others to the stateless persons and consider favorably the possibility of extending exemption from reciprocity to stateless persons who do not fulfill the above conditions (Refer to Paragraph 4). When reciprocity is required for the protection of rights of stateless persons, it may easily lead to highly negative consequences to the stateless. The purpose of the Convention, therefore, is to exempt from reciprocity. There is an exemplary model in the Korean Law. That is the refugee related clauses in the Immigration Control Act which was amended in December 2008 and effective from June 20, Article of the Act exempts reciprocity for refugees and says the recognized refugee shall be excluded from reciprocity despite clauses in other laws. A revision is required to exempt reciprocity to those who are recognized as stateless persons regardless of the length of stay in Korea. Stateless persons who have resided in the territory for three years or more should be excluded from reciprocity. 17 Kwon, Young-sung, Principles on Study of Constitution. Paju: Bupmunsa, 2009: 395.

7 Comparison between International Instruments on Statelessness and the Korean Laws Juridical Status (Chapter II) and Domestic Law Status of aliens according to the 1954 Convention may fall into the following four categories: i) same treatment as a national, 18 ii) same treatment as is accorded to nationals of the country in which he has his habitual residence, 19 iii) favorable treatment that is accorded to aliens generally 20 and iv) general treatment as aliens. 21 With regard to the juridical status as stipulated in Chapter II of the Convention, it is required that the stateless persons shall enjoy the same treatment generally accorded to foreigners. While generalization is difficult as the scope of protected stateless persons may differ by clause, same treatment as generally available to foreigners should be guaranteed. Furthermore, measures for implementation into the domestic law are required as stipulated by the Convention. 3.1 Article 12 (Personal Status) Status related to stateless persons include marriage (relationship of a married couple), relationship between parents and children and kinship, etc. and Article 12.1 of the Convention states on the matter that the personal status of a stateless person shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence. Paragraph 2 of the same article states rights previously acquired by a stateless person and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become stateless. According to the Convention relating to stateless persons, the right of status within Korea can be conditional to follow formal procedures required by the domestic laws of Korea, a Contracting State. As the above purpose are not specified in the domestic law, the purpose of the Convention should be clearly stated in the domestic laws that the status of stateless persons shall be governed by the law of the country of his domicile and that the vested interest according to the status are guaranteed. Take marriage for example. Effect from marriage under the Korean law includes general effect (Registration into family relationship registry, occurrence of kinship, rights and obligation of cohabitation, cooperation and dependency etc) and effect on property (matrimonial property system). 18 Articles 4, 14 (within the territory of the Contracting State of habitual residence) and 16.2 etc. of the 1954 Convention. 19 Articles 14 (within the territory of the Contracting State which is not a country of habitual residence) and 16.3 of the 1954 Convention. 20 Phrases in the Convention says that the contracting states shall accord to a stateless person treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances. Examples are Article 15 Right of association and Article 13 Movable and immovable property. 21 Jung, In-Seop. Convention Relating to the Status of Stateless Persons, International Human Rights Law 1, 1996: 65-84, 72.

8 38 Korea Review of International Studies On this issue, there are some issues with marriage related laws and marriage registration process under the existing laws related to the stateless persons. 22 Possibility of marriage registration is an issue, and when marriage registration is not an option, other status and rights may become hollow. In Korea, registration is required for a marriage to legally constitute. As marriage registration is highly important, it is impossible legally and practically for a stateless person to register his/her marriage. According to Article 71 (Required information for marriage registration and others) of the Act on the Registration, etc. of Family Relationship (No ), a registration requires residence identification numbers of the person who marries and his/her parents. Paragraph 1 of the Article, however, stipulates that the birth dates may replace the residence identification number when the person registering for marriage is an alien, but the nationality of the registrant is still required. 23 As a stateless person does not have a nationality to submit, marriage registration is not a valid option. In addition to the relevant law, there are following problems with marriage registration form and required documents. 1 The new marriage registration form effective from April 2009 (Form No. 10) requires the following information from the perspective of a foreigner. Residence identification number, name (Chinese character), family origin (Chinese character) are required information which may be replaced with the year/date of birth and nationality according to Article 71.1 of the above mentioned Act. However, as nationality is still required in the registration form, it poses challenge to stateless persons. 2 Procedural issues with the required documents Document to verify nationality of the foreigner who marries (copy of family register, birth certificate, copy of passport, copy of identification registration etc.) and document to verify that the foreigner satisfies requirements for a marriage to establish according to the law of his/her country of nationality (issued by competent authority of the country of origin including public offices, overseas embassies etc.) are required. But for stateless person there is no way to receive such verifying document. In summary, the purpose in Article 12 of the Convention that the status of stateless persons shall be governed by the law of the country of his domicile and that the vested interest according to the status are guaranteed. In this regard, Article 71 of the Act on the Registration, etc. of Family Relationship and the government marriage registration form that practically prevent marriage registration of stateless persons 22 Status clauses under the Convention is not limited to marriage between a Korean national and a stateless person, as Paragraph 2 also concerns recognizing personal status acquired by stateless persons and their family (stated by Christian Baureder, UNHCR Korea Office Protection Officer). 23 Article 71 of the Act on Family Status Certification and others: The following should be stated in the marriage registration. However in case of paragraph 3, consent form between the marrying couple should be accompanied. 1. Name, family origin, date of birth, residence identification number and location of registration (name, date of birth and nationality in case of a foreigner) 2. Name, location of registration and residence identification number of the parents and/or step parents of the marrying couple 3. Any fact regarding consent according to proviso of Article of the Civil Act 4. Fact verifying that it is not an incestuous marriage according to Article of the Civil Act.

9 Comparison between International Instruments on Statelessness and the Korean Laws 39 should be revised. 3.2 Article 15 (Right of Association) Article 15 (Right of association) is the right that needs to be protected especially with regard to trade union and non-profit association, which is already protected. It is interpreted that discrimination on the grounds of nationality regarding matters related to trade union is not allowed in Korea. However, three basic labor rights of migrant workers who are in Korea illegally are under debate. Therefore, the right to trade unions for stateless persons lawfully staying in Korea as protected by Article 15 of the Convention is already compatible with the Korean laws. The same goes for non-political and nonprofit-making associations. The right of association is one of the basic civil rights and therefore there can be no discrimination based on the type or existence of a nationality. 4. Gainful Employment (Chapter III) and Domestic Law The 1954 Convention stipulates to provide stateless persons lawfully staying in the territory with treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances with regard to wageearning employment (Article 17), self-employment (Article 18) and liberal professions (Article 19). As Article 24 determines matters related to discrimination in working condition, those clauses are intended for employment itself. As was stated above, those who are recognized as stateless persons by the government should be granted with stable status of sojourn such as F-2 (residence) visa according to the Immigration Control Act. This may guarantee stateless persons to reside in the territory and maintain their human dignity which is in line with the principle of favorable treatment to aliens. If stateless persons receive F-2 visa, they would not face any particular restriction in being employed in the territory, 24 and the visa does not require separate approval from the Ministry of Labor, etc. The remaining issue is the treatment of those who applied for status of stateless persons but yet to be recognized. According to domestic laws regarding refugees, it is desirable that applicants of stateless persons status are allowed to engage in employment after a certain period of time as is the case with refugee applicants. 25 Meanwhile, as with the case of the simple skilled labors under the work permit system, it can be considered as an option to allow stateless persons to engage in employment for the maximum period of three years (Act on the Employment, etc. of Foreign Workers). Though such treatment is not generally accorded to foreigners, it is highly recommended to consider such measure under the favorable treatment stated in Article 17 of the 1954 Convention. However, employment period under the visa under the work 24 Article 23.2 of the Enforcement Decree of the Immigration Control Act. May be slightly different according to specific status of sojourn. 25 The existing law allows employment when the refugee status determination procedures is prolonged for more than one year (Article of the Immigration Control Act, Article of its Enforcement Decree). However, the one year period has been criticized to be too long.

10 40 Korea Review of International Studies permit system (non-professional employment, E-9) expires after three years, 26 and therefore does not guarantee long-term sojourn. Regarding wage-earning employment of Article 17, there is no explicit provision against discrimination against stateless persons in recruitment and employment. The Framework Act on Employment Policy does not list discrimination on the grounds of nationality or against stateless persons prohibited reasons. That is, Article 19 of the Framework Act stipulates that an employee shall not discriminate against gender, religion, age, physical condition, social status, place of origin, school, marriage, pregnancy or medical history (collectively medical history) (hereinafter gender and others ) without any reasonable ground when recruiting and hiring employees and shall guarantee equal employment opportunity. It is interpreted, however, that discrimination on the basis of nationality is prohibited, 27 and therefore discrimination against stateless persons is also prohibited. 5. Welfare (Chapter IV) and Domestic Law Article 20 Rationing and Article 21 Housing are matters of low priority. As for rationing, there is no state-level rationing practiced in Korea and the housing is provided by the market instead of the government. Regarding Article 22 Public education, the Contracting States shall accord to stateless persons the same treatment as is accorded to nationals with respect to elementary education (Paragraph 1). As Korea provides mandatory elementary education free of charge, such right should be guaranteed for stateless persons as well. It needs to be clearly stated that stateless persons shall be entitled to elementary education as it is accorded to Korean nationals. From remote areas in 1985 and now on a national level, secondary education became mandatory to all Korean nationals. Therefore, it is only appropriate to mandatorily provide not only primary but secondary education to stateless persons. Such mandatory education should not be limited to stateless persons but should be made available to children of stateless persons. When children of stateless persons acquire Korean nationality, they are eligible for mandatory education free of charge. Such coverage should be extended to non-korean nationals, as elementary and secondary education is normally provided for the youth. On Article 23 (Public relief and assistance), most representative legal instruments regarding public relief include the National Basic Living Security Act which stipulates livelihood assistance to those who are living with less than the minimum cost of living and the Medical Care Assistance Act. It is desirable to add the following provision to include stateless persons under the coverage of public relief. (Minimum Living Security) Despite the clauses in Article 5 and Article 5.2 of the National Basic Living Security Act, those who have been recognized as stateless persons and who is under financial difficulties shall be protected under Article 7 to Due to the rotation policy, employment are sometimes extended for up to five years when the persons concerned satisfy a certain criteria. 27 Lim, Jong-Ryul. Labour Law, 8th edition. Seoul: Parkyoungsa, 2009:

11 Comparison between International Instruments on Statelessness and the Korean Laws 41 of the same Act upon request. 28 With regard to Article 24 (Labor legislation and social security), the Convention stipulates that stateless persons lawfully staying in the territory the same treatment as is accorded to nationals. Therefore, national treatment should be provided for the employment conditions (Paragraph 1(a)) and social security (Paragraph 1(b)). As the Labor Standards Act (Article 6) strictly prohibits discriminatory treatment, discrimination according to the interpretation of laws on employment conditions is not possible. As what is important is whether the persons concerned are workers who actually provided with the labor and discrimination based on their nationality etc. is prohibited. The Industrial Accident Compensation Insurance Act is interpreted under the same context. Meanwhile, the National Health Insurance Act (on sickness and birth) and the National Pension Act (on fatal disease, old age and death) should grant national treatment according to the principle of the Convention, which requires further amendment. 6. Administrative Measures (Chapter V) and Domestic Law 6.1 Article 25 Administrative assistance should be actively provided to stateless persons by the country where they reside. As stateless persons do not have the country of origin from which they can seek diplomatic protection, the Contracting State where the stateless persons reside should provide such protection. And the documents or certifications are required to be issued by the country where the stateless persons reside. 29 As the above document and certificate includes family status (certificate of birth, marriage, adoption, death or divorce etc.) and special status (academic of professional experience etc.), 30 it could be of high importance. 31 Personal status related to Article 12 of the Convention as was mentioned earlier and registration of newborn child and identity paper according to Article 27 of the Convention to be mentioned are closely related with administrative assistance. Regulations are in order to be used as a basis for administrative assistance in the domestic law. 6.2 Article 26 (Freedom of movement) The clause guarantees to stateless persons lawfully residing in the territory the freedom of movement generally applicable to aliens. 28 See Article 38 of the Draft Bill on Refugee Status Determination and Treatment of Refugees and Others (proposed by Lawmaker Hwang, Woo-Yeo and others). 29 Paragraph 1 says, When the exercise of a right by a stateless person would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting State in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities, and Paragraph 2 says that the authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to stateless persons such documents or certifications as would normally be delivered to aliens by or through their national authorities. 30 UN High Commissioner for Refugees. Commentary of the Refugee Convention 1951 (Articles 2-11, 13-37), October Commentary by Christian Baureder, UNHCR Korea Office Protection Officer.

12 42 Korea Review of International Studies It should be stipulated in the Immigration Control Act and others that definition of foreigners shall include stateless persons and that the right to choose the place of residence and to move freely within the territory should be guaranteed to stateless persons. 6.3 Article 27 (Identity papers) The Contracting States shall issue identity papers to any stateless person in their territory who does not possess a valid travel document. In this case those eligible to be issued with identity papers means any stateless person, 32 the legality of their status of sojourn is of no consequence. For, identity paper is the foundation for any and all stateless persons to be engage in any activity. Under the relevant domestic laws, unlike refugees, 33 stateless persons cannot have certificate of align registration, even less residence certificate or passport. Another important aspect of implementing the 1954 Convention is to allow stateless persons to be registered as alien. As for requirements to issue residence certificate, Article 6 of the Resident Registration Act excludes foreigners from those who can be issued with resident certificate. Paragraph 1 states that major, county governor, or gu mayor shall have those who have address or residence within the jurisdiction (hereinafter place of residence ) with the purpose of residing in the jurisdiction for 30 days or more (hereinafter resident ) under the provisions of the Act. However, foreigners shall be exempt from the provision. To supplement inability to access residence certificate, foreigner registration may be used but there are added difficulties to that option. According to the Immigration Control Act, if a foreigner sojourns in the Republic of Korea in excess of ninety days from his entry, he shall make a foreigner registration with the head of office or branch office having the jurisdiction over his sojourn place within ninety days from his entry, and the head of office or branch office who received such application shall issue a foreigner registration certificate to the applicant (Article 31 and 33). The foreigner registration certificate may substitute resident registration card issued to the nationals. The system has similar purpose as the resident registration system where in the event that any resident registration card, or the certified copy or abridged copy of resident registration certificate is required to execute various procedures and transactions, etc. as provided for in the Acts and subordinate statutes, a foreigner registration certificate or a fact-certification on foreigner registration shall substitute it. Also, any foreigner registration and any report on a change of sojourn place shall substitute any resident registration and any moving-in report (Article and 2 of the Act). 34 Foreigner registration certificate functions as an identity paper and a person without the certificate may face disadvantage. For example, when a person does not 32 UN High Commissioner for Refugees. Statelessness: An Analytical Framework for Prevention, Reduction and Protection, 2008: Recognized refugees are issued with Certificate of Refugee Recognition (Article of Immigration Control Act). 34 Korea Immigration Service, Ministry of Justice, Understanding Laws Relating to Immigration (Multicultural Society Specialist Level 2), December 23, 2008: 23.

13 Comparison between International Instruments on Statelessness and the Korean Laws 43 carry the health insurance certificate, resident registration card or foreigner registration certificate may substitute it, 35 and a foreigner should present foreigner registration certificate to claim information from a public office. 36 Foreigner registration requires identification of nationality and possession of valid passport. Matters to be registered as a foreigner according to Article 32 (Matters to be registered by foreigners) under the Immigration Control Act are as follows: 1. Name, sex, birth date and nationality; 2. Number, issue date and valid term of passport; 3. Work place and position or affairs in charge; 4. Address of his home country and sojourn place in the Republic of Korea; 5. Status and period of sojourn; and 6. Other matters as determined by the Ordinance of the Ministry of Justice 37 Therefore to allow stateless persons to be registered as foreigners, part of requirements under Article 32 should be revised or excluded from applied to stateless persons. The proposed revision include that as per paragraphs 1 and 4, stateless persons should be allowed to be registered, and that passport under paragraph 2 may be travel document to be specified below (on Article 28 of the Convention). Important aspect is that all foreigners including stateless persons are required to carry or present identity papers at all times, and a failure to comply with the request of competent government official to present relevant documentation may result in fine. Therefore, foreigner registration certification or other types of identity paper should be issued to stateless persons instead of imposing such regulation and fine. According to the Immigration Control Act, any foreigner sojourning in the Republic of Korea shall carry at any time his passport, seaman s identification papers, written foreigner entry permission, foreigner registration certificate or written landing permission: Provided, That the same shall not apply to any foreigner under seventeen years of age (Article 27. 1). Also, when the immigration control official or a competent public official demands to present the passport, etc. in carrying out his duty, the foreigner as referred to in the text of paragraph (1) shall comply with it (Article 27.2). Moreover, if any foreigner sojourning in Korea who is 17 years of age or older fails to carry the passport etc, or fails to comply with the request of the immigration control official or a competent public official to present the passport, etc. in carrying out his duty, the foreigner shall be punished by a fine not exceeding one million won (Article 98.2 of Immigration Control Act). 6.4 Article 28: Travel documents According to Article 28 of the 1954 Convention, travel documents should be issued to stateless persons so that they can travel outside the territory. Without such document, stateless persons cannot leave the territory of Korea to meet their family members or to look for a new place of permanent settlement. Migrant workers can leave 35 Article 6.2 of the Enforcement Regulation of the National Health Insurance Act. 36 Article 15 of the Enforcement Decree of the Official Information Disclosure Act Date of entry and port of entry, 2 Matters regarding visas, 3 Matters about an accompanying person, 4 Head of household and relation to him/her, 5 Business registration number (Article 47 of Enforcement Regulation, Immigration Control Act).

14 44 Korea Review of International Studies Korea to meet their family, but stateless persons cannot. And once stateless persons leave the territory of Korea, they do not have any right to return. One of the agonies that stateless persons should endure is separation from their family for indefinite period of time. 38 It is problematic for stateless persons to legally leave the territory of Korea or to invite their children or spouse to Korea. Those who should be issued with travel documents should include those who are in Korea through smuggling or human trafficking. 39 A model can be recommended to address this issue: that is to refer to Article 76-5 of the Immigration Control Act regarding refugees. 40 Article 76-5 stipulates that the Minister of Justice shall issue travel document to a recognized refugee upon request (Paragraph 1). The valid term of the refugee travel document is one year (Paragraph 2), and may enter or depart from Korea freely and permission for re-entry is not necessary during the term. If the refugee who departed from Korea cannot re-enter the territory within the valid term due to disease or other inevitable reasons, the term may be extended up to six months. The Minister of Justice as well as the head of the diplomatic mission abroad may permit the extension of term (Paragraph 5). The Enforcement Decree of the Immigration Control Act has more specific regulations on the above Act: Article 88-5 Issuance of Refugee Travel Certificate, Article 88-6 Re-issuance of Refugee Travel Certificate, Article 88-7 Extension of Valid Term of Refugee Travel Certificate, and Article 88-8 Return of Refugee Travel Certificate. III. Comparison between International Instruments for Reduction of Stateless Persons and Korean Law 1. Comparison between the Convention on the Reduction of Statelessness and Korean Law Republic of Korea should execute the 1954 convention in full and thoroughly prepare for ratification of the Convention on the Reduction of Statelessness through relevant researches and promotions etc. While it is meaningful to guarantee basic human rights to stateless persons occurring in the real environment, it is more fundamental approach to prevent occurrence of stateless persons as is the goal of the Convention on the Reduction of Statelessness. The Nationality Act of Korea has made a significant progress over the several revisions by, for example, adopting the principle of nationality acquisition by both paternal and maternal bloodline. Despite the progress, there are some gaps between the Korean Nationality Act and the Convention on the Reduction of Statelessness. 38 Brouwer, Andrew. Statelessness in Canadian Context. UNHCR, a discussion paper, July 2003: 3. (Refworld). 39 UN High Commissioner for Refugees, Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, 6 October 2006, No. 106 (LVII)-2006, (l) and (m). 40 There is difference in requirements between the Stateless Convention and the domestic law. As Article 76-5 (1) of the Immigration Control Act acknowledge a wide variety of exceptions by saying except in case his/her departure is deemed detrimental to the interest or security of the Republic of Korea.

15 Comparison between International Instruments on Statelessness and the Korean Laws 45 According to the Nationality Act, a child born in Korean may acquire Korean nationality when both parents are stateless, while the Convention on the Reduction of Statelessness a stateless child born in the territory of Korean should acquire the Korean nationality when the child may become stateless otherwise. Additionally, there still are slight differences between the Korean laws and the Convention on the Reduction of the Statelessness regarding the provisions that strictly prohibits dual/multiple nationality, 41 provisions on the nationality of foundlings, and provisions on revocation of those who acquired Korean nationality through fraudulent methods. As such differences are not significant to cause enormous budget spending by the Korean government or to cause serious public or nationality security issue, there is a need to ratify the Convention on the Reduction of Statelessness in a not a distant future. There is increased number of documents recently pointing out the need for ratification. 42 The followings are comparison between the 1961 Convention on the Reduction of Statelessness and relevant Korean laws and practices. 1.1 Article 1 of the 1961 Convention Contents of Article 1 The following is the gist of Article 1 of the 1961 Convention which provides great details. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless (stateless person) at birth or upon application (Paragraph 1). A Contracting State may also provide for the grant of its nationality by operation of law subject to such conditions as may be prescribed by the national law. Conditions may include the age of an applicant, residence condition, prior criminal history and/or the fact that the applicant has always been stateless (Paragraph 1 and 2). A child born in wedlock, whose mother has the nationality of a Contracting State, shall acquire that nationality (Paragraph 3). When a person becomes stateless due to a failure to satisfy age limit or residence condition, the person shall be provided with the nationality of a Contracting State if the nationality one of his parents at the time of the person s birth was that of the Contracting State (Paragraph 4). In such case, provision of nationality may be subject to a certain condition (Paragraph 5). 41 Recently the Ministry of Justice is preparing a draft legislation to alleviate prohibition on dual nationality, which is a welcomed move. Under the draft legislation, those who acquired Korean nationality may renounce their original foreign nationality within one year and the marriage migrants or those who are adopted from abroad may acquire Korean nationality without renouncing their original nationality. Refer to Ministry of Justice, Partial Amendment to the Nationality Act, November Jung, In-seop and the others, op.cit., pp ; Park, Chan-Woon. International Protection on the Statelessness and our tasks, in; Seminar on International Protection on the Statelessness organized by National Human Rights Commission of the Republic of Korea, UNHCR and IPI, 2006: 9. UNHCR is interested in potential ratification by the Republic of Korea. Refer to comments by UNHCR Korea Office Representative Janice Lyn Marshall, Booklet for the Workshop on the Relationship between the Korean Nationality Law and the International Instruments regarding Statelessness (Co-hosted by UNHCR and ILA Korean Branch), June 5, 2008: 9-12.

16 46 Korea Review of International Studies Level of Agreement Contents in Paragraph 3 have already been satisfied. Article 2.1 of the Nationality Act stipulates that a person shall be provided with Korean nationality when the mother is Korean, and moreover, it is interpreted that when the person was born out of wedlock, the person can still acquire the nationality of the mother. 43 There are disparities between Paragraph 1 and 2 and the domestic laws. While Article 1 of the 1961 Convention stipulates that a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless, the Nationality Act shall grant nationality to those who are born in Korea only when both parents do not have nationality (Article 2.1.3). Under the provision, when one of the parents is a foreign national and the other is a stateless person or of unidentified nationality, the child of the parents cannot obtain Korean nationality even when such inability leads to statelessness. The Korean law may not completely prevent occurrence of statelessness. For example, children from a couple under a de facto marriage where the father is Korean and the mother is a foreign national, and children of the couple who are illegal migrants in the territory may become stateless. When reflecting clauses in Article 1.1 of the 1961 Convention, a person who are born in the ROK territory and may not obtain nationality in any other manner should be able to acquire nationality at birth or upon application. The situation may be resolved when they later obtain foreign nationality, but the unstable period of statelessness may be prolonged. Even under the Convention, it is not required to grant Korean nationality to all stateless persons born within the territory. The Korean government may do so according to a set of standards specified in the domestic laws. That is, Article 1.2 states that acquisition of nationality may be conditional upon one or more of the following conditions: the age of applicant, 44 residency condition, 45 prior criminal history and the fact that the applicant has always been stateless. It is noteworthy that unlike the requirements for naturalization under the Nationality Act of Korea, decent conduct or ability for subsistence is not identified as the conditions. Prior criminal history does not include any and all crimes but is limited to serious offence (Conviction from an offence against national security or sentence of imprisonment for a term of five years or more on a criminal charge). 46 While Paragraphs 4 and 5 have less significance than Paragraphs 1 and 2, they still warrant some considerations. Paragraph 4 is for those who became stateless due to failure to satisfy above conditions for nationality application (age or residency conditions) 43 Ministry of Justice, Commentary on the Nationality Act, p The application shall be submitted during the period specified by the Contracting States which is longer than the period from when the applicant is 18 years of age or younger to when he is older than 21. The person concerned should be given at least one year of time to voluntarily apply for citizenship without a separate legal approval (Paragraph 2 (a)). 45 The applicant should have resided in the territory of the Contracting State for the period specified by the Contracting State for the consecutive period of five years immediately before the submission of the application or for less than 10 years in total period of stay (Paragraph 2 (b)). 46 Article 1.2(c), Convention on Reduction of Statelessness.

17 Comparison between International Instruments on Statelessness and the Korean Laws 47 though he is born in the territory of a Contracting State and the nationality one of the parents at the time of the person s birth was that of the Contracting State. Paragraph 5 is about the condition applicable to such situation. In summary, to reflect the principle under Article 1 of the Convention Relating to the Reduction of Statelessness, the domestic Nationality Act should be revised. Stateless persons who are born in the territory and cannot acquire any nationality otherwise should be granted with Korean nationality. Such granting may be conditional upon residency in the territory for the total period of 10 years or less and the condition may be relieved when one of the parents is Korean national. Provisions in Article 1.3 of the Convention has already been satisfied. 1.2 Articles 2 and 3 Article 2 While the 1961 Convention stipulates that a foundling found in the territory of a Contracting State shall be considered to have been born within that territory of parents possessing the nationality of that State, the Korean laws have different line of presumption. The Korean laws state that a foundling found in the territory of Korea shall be considered to have been born within the territory. That is, there is no consideration on the nationality of the parents. As the current laws currently provide considerations for the fact related to birth itself, it is difficult to acquire Korean nationality. As there is no prior family relationship registry for a foundling, the registry needs to be newly established. After reporting resident registration with competent family relationship registration office, certificate of seal impression and neighbors certificate need to be attached to seek a court approval for establishment of family relationship registry. 47 Article 3 For the purpose of determining the obligations of Contracting States under this Convention, birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship flies or in the territory of the State in which the aircraft is registered, as the case may be. Though such provisions are not part of the domestic laws, some view that the ship or aircraft that are subject to the jurisdiction of the Republic of Korea may be considered as the ROK territory in the application of the Nationality Act Article 4 47 No. 287 of the Established Rules on Family Relationship Registration (Guidelines on Handling Application for Approval on Creation of Family Relationship Registration and the Procedures on Creation of Family Relationship Registration) Article (Established on December 10, 2007, No. 212, Established Rules on Family Relationship Registration/Revised on June 18, 2008, No.287, Established Rules on Family Relationship Registration) Article 1 (Purpose): The purpose of the Established Rule is to determine matters regarding requirements and procedures for a person who does not have family relationship registration intending to apply for creation of a family relationship registration under the Act on the Registration, etc. of Family Relationship. 48 Ministry of Justice, Commentary on Nationality Act:

18 48 Korea Review of International Studies The purpose of the article is to grant nationality to a stateless person not born in the territory of a Contracting State. It has similar logic as Article 1.4 with the only addition in conditions for granting nationality of (c) that the person concerned has not been convicted of an offence against national security. The clause is believed to be targeting a situation where a person from a country of the jus soli principle may end up stateless. While the law of Korea is based on the jus sanguinis principle and as it allows for acquisition of Korean nationality even when any one of the parents has Korean nationality at the time of birth of the applicant (Article 2.1.1), there is no need for separate legislation for the clause. 1.4 Articles 5 A loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, or legitimation shall be conditional upon possession or acquisition of another nationality. This does not pose any challenge under the Korean law, except for a small room for controversy over some clauses to prevent dual nationality. While acquisition of a foreign nationality by a Korean nationality holder automatically leads to the loss of Korean nationality (Article 15 of Nationality Act), it is consistent with Article 5 of the 1961 Convention as the precondition for loss of nationality is acquisition of foreign nationality. Meanwhile, a clause affecting a foreign national in acquiring Korean nationality demands close attention. A foreigner, who has foreign nationality and also acquires Korean nationality, shall surrender the foreign nationality within six months from acquiring Korean nationality. Otherwise, Korean nationality is automatically lost after six month (Article 10 of Nationality Act). However, as in the case of a Chinese national married to a Korean surrenders the Chinese nationality after six month from marriage, a person may lose both Korean and Chinese nationalities. 1.5 Article 7 Paragraph 1 If the law of a Contracting State permits renunciation of nationality, such renunciation shall be conditional upon acquisition or possession of another nationality by the person concerned. While Article 7 is similar in contents to Article 5, Article 7 is not limited to changes in status while Article 5 is only applied when there is change in status including marriage. As was the case with Article 5 of the 1961 Convention, loss of nationality under Article 10 of the Nationality Act may be an issue. Paragraph 2 Under Article 15 of the Nationality Act, when a Korean national who voluntarily acquire a foreign nationality shall lose Korean nationality when acquiring the foreign nationality, which is in line with Article 7.2 of the 1961 Convention. 1.6 Article 8

19 Comparison between International Instruments on Statelessness and the Korean Laws 49 Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless. The Article affects Article 21 of the Nationality Act on Cancellation of Nationality. While Article 8.2(b) of the 1961 Convention states that person may be deprived of the nationality of a Contracting State where the nationality has been obtained by misrepresentation or fraud, Article 21.1 of the Nationality Act states that the Minister of Justice may cancel an approval for naturalization or a decision for restitution or retention of nationality due to deceit or any other fraudulent method. The conditions under which nationality may be deprived are largely in line with the Convention purpose. 49 According to Article 8.4 of the 1961 Convention, a Contracting State shall not exercise a power of deprivation except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. 50 Previously cancellation of nationality was based on Guidelines on Nationality Business Procedures which is simply established rules of the Ministry of Justice. Starting 2008, the Nationality Act provided foundation for cancellation of nationality, which brings the local practice closer to the 1961 Convention. The right to a fair hearing by a court or other independent body may be an issue, as Article 21 of the Nationality Act states that nationality may be deprived by the Minster of Justice not by a court or other independent body. While there indeed is established procedures where the Minster of Justice provides opportunity for vindication to the person concerned (Article 21.2 of Nationality Act, Article 27.2 of Enforcement Decree of Nationality Act), the Minister of Justice can hardly be considered as an independent body. 1.7 Articles 9 to 11 Article 9 Article 9 stipulates that nationality cannot be deprived on racial, ethnic, religious or political grounds. There is no domestic law provision containing the above. Article 10 This is a matter of treaty among Contracting States governing transfer of territory. It does not have any direct bearing on Korea. Article 11 The Contracting States shall promote the establishment within the framework of the United Nations, as soon as may be after the deposit of the sixth instrument of 49 However, the conditions listed in the Presidential Decree (Article 27.1 of Enforcement Decree of the Nationality Act) as reasons for cancellation of nationality are not necessarily corresponding to the Convention reasons. 50 UNHCR states that deprivation of nationality should not only base on law but also accompany full procedural guarantee as the right to a fair hearing (UN High Commissioner for Refugees. Information and Accession Package: The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, January 1999: 14. available at: refworld/ docid/3ae6b3350.html [accessed 6 July 2009]). In the document, the right to a fair hearing is one of the examples of full procedural guarantee.

20 50 Korea Review of International Studies ratification or accession, of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority. UN General Assembly required UNHCR to perform such role. 51 This does not have any direct relations with implementation of the clause within the Contracting States. 1.8 Articles 12 to 17 Article 12 Matters related to the scope of fetus and foundlings in application of Articles 1 and 2 of the Convention. Article 13 The Convention shall not be construed as affecting any provisions more conducive to the reduction of statelessness which may be contained in the law of any Contracting State or in any other convention, treaty or agreement. Article 14 The role of the International Court of Justice. Any dispute between Contracting States concerning the interpretation or application of this Convention which cannot be settled by other means shall be submitted to the International Court of Justice at the request of any one of the parties to the dispute. Article 15 Scope of application of the Convention. This Convention shall apply in all nonself-governing, trust, colonial and other nonmetropolitan territories for the international relations of which any Contracting State is responsible. Article 17 Scope of reservation in the Convention. Only Articles 11, 14 and/or 15 may be reserved and no other reservations to this Convention shall be admissible. The clause prevents any reservation on fundamental substance of the Convention. 2. Registration of Child. Right to Acquire Name and Nationality 2.1 International norm As one of the most contentious areas in the reduction of statelessness is registration of child, international instruments that have affect equivalent to domestic laws needs to be reviewed. They are the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child. The government of Korea ratified both conventions and therefore a Contracting States to both of them. 51 UN High Commissioner for Refugees, Information and Accession Package, op.cit.: Korea has been signatory to the International Covenant on Civil and Political Rights since July 10, 1990 and to the UN Convention on the Rights of the Child since 1991.