脫北者 問題에 관한 國際法的 考察 = A Review of International Law on the Escaped from North Korea

다국어 초록 (Multilingual Abstract)

The bipolar world after the Second World War was ended by the collapse of the Soviet Union, the leading country of the communism. The Eastern Europe countries, having adopted the communism so far, currently accept the democracy to improve low-developed policy and economy. However, even on this moment, North Korea does not give up the communism to maintain its system. The economic crisis and food shortage of North Korea especially caused by Kim Il-Sung's death of 1994, big flood of 1995 and 1996, accelerate North Korean residents' escape to China or Russia. The economic hardship of North Korea is the direct reason of the escape. Besides, the inflow of information on the outside world, caused by the collapse of Eastern Europe and the open-door policy of China, has increased relative deprivation of residents, which is the indirect reason. North Korea has politically suppressed the people to maintain the communist regime. Moreover, economic hardship and natural disasters of last few years have made their life more miserable.
As a result, many residents are escaping North Korea for the better life at all risks. Before Kim Il-Sung's death, people are escaping North Korea mainly because of political suppression and dissatisfaction with the regime. However, recently the escape has happened due to a variety of reasons, including personal one such as discontent with treatment and economic one caused by social disturbance and food shortage. The escaped residents' social positions have also become diverse, ranging from soldier, spy to student in Eastern Europe, woodcutter, and diplomat. The escaped residents are being arrested by local police and forced to be repatriated. However, although South Korea announces its policy that it will accept all the escaped North Korean residents, it does not take any positive action due to the possibility of conflict of interests with related countries. The number of the escaped is increasing and recently it has become a hot issue of international society by a series of incidents such as the demonstration asking for refugee status and an attempt to enter an South Korean embassy.
In response to forced repatriation happening in China, the 54th UN Human Rights Committee unanimously carried a resolution on August 14th, 2002, that urges international protection of the refugee including the escaped North Korean and opposition of forced repatriation. Although South Korea grants a citizenship to the escaped, it keeps a consistent policy dealing with this issue silently because of several reasons. One is the correlated interests of neighboring countries. Another is the fact that this issue is not helpful for reconciliation with North Korea driven by so-called 'sun-shine policy' of Kim Dae-Joong regime. The escaped residents are granted dual legal status, South Korean citizenship by municipal law and North Korean citizenship by international law. The biggest problem of the escaped is that their legal status is not secure and, furthermore, there is no effort at the international level to solve the problem from this point of view. It is also observed from the fact that the international society rejects the view that the escaped hold South Korean citizenship. Even South Korean government does not put an effort on diplomatic protection of them, which is widely-established principal of international law for one's citizens. The issue on the escaped North Korean is not just a problem of related countries any longer, rather, it has become a serious issue of international society. According to the 'Escaped North Korean Protection Law' enacted in July of 1997, the escaped can make a request for the directors of the administrative organizations such as an embassy or military compound. However, considering the reality of international society, it is not an optimal solution since North Korea is a firmly confirmed national entity according to the international law. Therefore, any attempts to transport the escaped staying in third country into South Korea will infringe on North Korea's sovereignty on its people, which will raise a diplomatic problem with third country. It is challenging to find a solution for the problem of the escaped North Korean because there exist a variety of choices and high uncertainty. It is also because of Our poor preparation for the variables such as related country's ratification of refugee convention, relationship between South and North Korea, etc. Secret agreement between North Korea and related countries is one of the variables as well. For example, China made 'The Convention on Repatriation of North Korean Smuggler' with North Korea in early 1960s. But these kinds of agreements are not all revealed yet. On a basis of the above, the effort to trace the optimal solution reveals that we should claim that the escaped North Korean are the refugees and advocate their legal rights, rather than we claim only in our country that the escaped are South Korean citizen. In this way, we should put the escaped under the protection of the UN convention and UNHCR. They escaped North Korea at the risk of their life. At least we should be able to halt their repatriation to North Korea and put them under the protection of UNHCR by adopting Principle of Non-Refoulement, the core of protection of the refugee. Next step is to request Territorial Asylum and Temporary Protection to related countries since these are widely recognized in international law regardless of the escaped's refugee status. Moreover, we need to stop taking negative attitude and solve the problem through diverse channels such as association with international NGOs, diplomatic negotiation with related countries, etc.
South Korean government keeps silent foreign policy based on 'sun-shine policy', therefore, their voice is hollow. All of the above are practical actions that will reduce possible conflicts between related countries and North Korea and make it easier the escaped's defection to South Korea. How to solve the problem of the escaped is not limited to only whether he/she can defect to South Korea or not. It falls on us as a tabloid edition of reunification of Korean Peninsula and as our first mission to prepare reunified Korea in 21st century.

목차 (Table of Contents)

• 목차
• Abstract = iii
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍 및 方法 = 2
• 第2章 脫北者에 대한 關聯國에서의 法的對應 = 4
• 第1節 脫北의 原因 및 目的 = 4
• 第2節 關聯國에서의 法的對應 = 5
• 1. 中國 內 脫北者 = 5
• 2. 러시아 內 脫北者 = 9
• 3. 동남아시아 地域에서의 脫北者 = 11
• 第3節 우리나라와 北韓에서의 法的對應 = 12
• 1.北韓 = 12
• 2. 우리나라 = 14
• 3. 小結 = 17
• 第3章 脫北者에 대한 國際法의 適用可能性 = 20
• 第1節 國際法上 難民에 관한 一般理論 = 20
• 1. 難民의 槪念 = 20
• (1) 迫害에 대한 恐怖를 가진 者 = 21
• (2) 國籍國 또는 常住國 밖에 있는 者 = 23
• (3) 難民協約 適用 排除 또는 適用 停止 = 25
• 2. 難民의 資格決定 = 25
• 3. 難民의 保護에 관한 各國의 態度 및 管轄權 = 26
• 第2節 難民槪念의 擴大現狀 = 29
• 1. 難民槪念의 性格 變化 = 29
• (1) 仲裁難民(失鄕民) = 31
• (2) 國內 失鄕民·歸還者 = 32
• (3) 亡命者 = 32
• 2. 槪念擴大에 따른 一般的·地域的 國際原則 = 33
• (1) 難民處遇에 관한 BanKok宣言 = 33
• (2) 아프리카難民問題에 대한 OAU協約 = 34
• (3) Catagena宣言 = 34
• 3. 難民槪念의 擴大現狀 = 35
• 第3節 脫北者의 難民地位 附與 = 36
• 1. 脫北者의 難民性 = 36
• 2. 關聯國에서의 難民地位 適用排除의 不當性 = 38
• 3. 脫北者의 難民地位 認定 = 39
• 第4章 脫北者 問題의 解決方案 = 42
• 第1節 一般國際法上의 保護 = 42
• 第2節 難民으로서의 脫北者 保護 = 45
• 1. 國際聯合 難民高等辦務官 = 45
• (1) 國際聯合 難民高等辦務官의 創設과 特徵 = 45
• (2) 國際聯合 難民高等辦務官의 活動과 協力體系 = 47
• (3) 國際聯合 難民高等辦務官과 脫北者 = 53
• 2. 强制送還의 禁止 = 55
• 第3節 非難民으로서의 脫北者 保護 = 57
• 1. 關聯國에 領土的 庇護 義務와 暫定的 保護의 促求 = 57
• 2. 外交的 交涉 = 60
• 第5章 結論 = 65
• ▣參考文獻▣ = 67