북한 난민신청자의 법적 지위에 관한 제3국의 해석: 난민과 국민 지위 간 딜레마와 그 해결방안

This article examines legal status of North Korean defectors residing in third party states particularly focusing on their refugee status decided by the U.S. and Australia. A controversy on interpretation of their legal status is whether they are considered as nationals of South Korea so that their refugee status could be denied by virtue of the Article 1A(2) of the 1951 Refugee Convention. The article criticizes a series of decisions made by Australian Refugee Review Tribunal where it ruled that North Korean defectors acquired nationality of South Korea at their birth and therefore, these dual nationals cannot be qualified as refugee as long as their second nationality does not provide a well-founded fear of persecution. While the Tribunal relies on Article 3 of the South Korean Constitution and the decision of South Korean Supreme Court, its interpretation of Korean domestic law is incorrect. The former regulating territory of South Korea is out of all relation to the acquisition of nationality as the state adopts jus sanguinis, not jus soli. Moreover, the Tribunal distorts the latter as it confuses the meaning of ‘North Korean’ stipulated under the decision because the word of North Korean under South Korean law dose not refer to ‘national’ of North Korea; applying so called one state one nationality doctrine, South Korea does not recognize nationality of North Korea. The critical error found in the Australian cases is that simultaneously possessing dual nationality of two Koreas is impossible and unrealistic. The article argues that the Tribunal indeed distorts the one state one nationality doctrine of the divided state to refuse refugee status of North Korean defectors. Not only such state practice infringes their right of asylum, but also it is in discord with the UNGA Resolution which urges all Member States to protect North Korean defectors as refugee. The U.S., by contrast, considers the defectors as a single national of North Korea and ensures their right of asylum. While the North Korean Human Rights Act explicitly stipulates that North Korean shall not be considered as South Korean for the purpose of eligibility of refugee status, it also provides that they have right to acquire citizenship of South Korea. North Korean defectors residing in the U.S., therefore, may have a choice to choose their fate by his own will; they can seek refugee status as a North Korean, or they can request repatriation to South Korea where they can ‘change’ their nationality. In this context, this article argues that such state practice not only correspond with object and purpose of the Refugee Convention, but also maximizes human rights protection by approving their right to nationality.