I. Background and Purpose of Research
▶ Research Background
○ South Korea is currently facing an unprecedented demographic crisis, more severe than any other country due to a dramatic decline in total fertility rates. Since entering the ranks of l...
I. Background and Purpose of Research
▶ Research Background
○ South Korea is currently facing an unprecedented demographic crisis, more severe than any other country due to a dramatic decline in total fertility rates. Since entering the ranks of low-fertility nations in 2001, Korea has experienced an unprecedented population decrease, recording a historically low total fertility rate of 0.7 in 2023.
- With the onset of the 2020s, the breadth of population decline has significantly widened, raising concerns that the current issue has evolved from a demographic crisis to a potential national extinction threat. The problem of population decline—described with various terms such as "demographic cliff," "population extinction," and "regional extinction"—carries severe implications for national governance and interests, including a drastic reduction in the school-age population and a decline in military resources.
- If the current total fertility rate remains unchanged, Korea is projected to become the first nation in the world to vanish by 2750 due to population extinction. This grim outlook underscores the urgency of addressing population decline to ensure the nation's survival.
○ To overcome the population crisis, targeted research is essential across key areas directly contributing to population decline. Legislative approaches should emerge from comprehensive and multifaceted examinations of these research fields. However, in the legislative domain, prior research on population decline in South Korea has largely focused on isolated approaches based on domestic law, with limited comparative and international legal studies in global contexts.
▶ Research Purpose
○ This study aims to develop a comprehensive legal and institutional response to address the issues of population decline and low birth rates. To achieve this, the study identifies key areas of internal legislation on family support, nationality as an external policy, and the military service implications of these issues. It will investigate and analyze global legislative data through the methodologies of international and comparative law, seeking effective directions for Korea’s response to the population decline crisis.
○ The objectives of specific field studies are outlined as follows:
- First, the study on family support will examine relevant international norms, such as treaties, and the legislative practices of major
countries to propose directions and legislative measures for family support systems that may contribute to increasing birth rates.
- Second, the research on nationality will critically review the current nationality law and explore ways to expand the scope of natural-born and naturalized nationals by examining international law and legislative examples from key countries.
- Third, the study on military service will seek ways to reform the military conscription system in response to the decrease in military resources, referring to relevant international norms and the military policies of major countries.
Ⅱ. Contents
▶ Family Support and Depopulation
○ Family support policies can contribute to the rebound in birth rates. However, this will only be effective if it is based on changes in social structure. As the Low Birthrate and Aging Society Commission pointed out, childbirth issues are not regulated or controlled by external forces but are the result of individual choices made in the process of adapting to social and institutional environments. Therefore, while this committee has proposed a rights-based approach, it is difficult to say that Korea's family support legislation is based on rights. Then, it is necessary to review the trends in global legislation.
○ Therefore, this study aimed to review and analyze various international norms that directly and indirectly support children, women, and families,such as child allowances, maternity leave, work-family balance, and
childcare services, in order to derive implications for Korea. Recently,various policy alternatives have been proposed to address the decliningbirth rate, but it is difficult to say that these have caused changes inthe social structure. Therefore, rather than making various forms of minorpolicy adjustments, it is necessary to approach it as a human rights issuethat can bring about changes in social structure. This study reviewedand analyzed global norms that approach issues underlying family supportfrom a human rights perspective.
○ When compared to international norms and the family support legislationof major comparable countries, it can be seen that there are two significantlimitations. Generally, Korea's family support legislation is not based onrights. In particular, Article 4 of the Infant and Toddler Care Act, Article4 of the Child Care Support Act, Article 3 of the Early Childhood EducationAct, and Article 3 of the Child Allowance Act are stipulated at the levelof efforts and do not specify rights. On the other hand, Korea's familysupport legislation is not as diverse as international norms and thoseof major foreign countries, and the quality of these norms also seemsto be lacking. Of course, the Korean government has been actively pushingfor various improvements in family support legislation recently.Nevertheless, it is lacking compared to OECD countries. Therefore, itis recommended to reflect rights-based legislation in individual laws and to improve the quality and quantity of the system.
▶ Nationality and Depopulation
○ Since states have the discretion and authority to determine whobecomes a national of their country, it is necessary to explore ways toexpand the scope of natural and acquired citizenship in response tothe national crisis of population decline.
○ This study analyzed and reviewed foreign legislation and internationalnorms governing the acquisition and loss of nationality to examinewhether the jus sanguinis and single nationality principle adopted bythe current nationality law can adequately respond to the demographiccrisis. In terms of foreign legislation, a number of countries haveabolished single nationality principle and adopted multiple nationalities.In relation to international norms, this study concluded that the singlenationality principle can no longer be a valid principle of internationallaw and that modern treaties allow for multiple nationalities.
○ In this context, Korea's practice of the jus sanguinis and singlenationality principle overly strictly limits the scope of its citizenship.It is difficult to see that the jus sanguinis per se is a law that limits thescope of citizenship. The problem with the current nationality law isnot the adoption of jus sanguinis, but the 'connection' between jussanguinis and single nationality principle. The combination of the twojurisprudence leads to a shrinking of the scope of nationals in modernsociety, where cross-border population movements are rapidlyincreasing, with an increasing number of extraordinary factors such asinternational marriages and overseas migration and immigration. First,as the comparative study of the former West Germany shows, Korealimits the scope of national at birth by recognizing only those whohave not acquired a foreign nationality during their stay abroad asnationals. Second, the principle of single nationality forces citizens whoacquire a foreign nationality to choose one or the other, resulting inrenunciation of the nationals at birth and discouragement of foreign naturalization.
○ Facing a demographic crisis, Korea needs to carefully consider whetherit should fully allow multiple citizenship in order to expand the scopeof its national at birth, prevent their expatriation, and accommodate acquired nationals through naturalization.
▶ Military Service and Depopulation
○ A nation’s military service system is determined by various factors,including its security environment, specific conditions such as geopoliticalcircumstances, the trends of neighboring and adversarial countries,political, economic, and social conditions, historical background,public opinion, and population size. Today, many countries adopt amixed approach, blending elements of conscription and volunteerservice. Similarly, South Korea follows a “conscription-based mixedsystem,” primarily focused on mandatory service for men, whileallowing volunteer service for women.
○ Under international human rights law, equality and non-discriminationobligations require that fair and non-discriminatory criteria be appliedwhen selecting conscription targets; failure to do so may raise issuesof equal rights violations. Since the end of the Cold War, manyEuropean countries that had transitioned from conscription tovolunteer military systems have recently reintroduced conscription,indicating that a fully volunteer military system may be inappropriatefor South Korea’s security environment. Therefore, it is necessary toexplore improvements to the conscription system by referencing othernations’ practices and to identify rational solutions that integrate the strengths of volunteer systems.
○ UN Security Council Resolution 1325, adopted in 2000, advocates foractive female participation, gender balance, and gender mainstreamingin international peace and security processes, significantly influencingnational military systems. As a result, over 20 countries haveintroduced mandatory military service for women. Should the issue offemale conscription arise in South Korea, comparative legal researchon cases from other nations would support the establishment anddevelopment of a legal framework suitable to South Korea’s specificcircumstances.
○ Although mercenary activities are effectively prohibited under internationalhumanitarian law, countries recruit foreign nationals who do not holdtheir citizenship, enlisting these foreign recruits into their armed forceswithout classifying them as mercenaries. Major national policies forforeign recruitment can be categorized into three models: theAustralian model, based on expertise importation; the French model,rooted in labor importation; and the Israeli model, focusing onstrengthening international ties. If foreign recruitment is publiclydiscussed in South Korea, a comparative legal analysis based oninternational law standards for mercenaries and the practices of major countries could facilitate the development of a legal framework alignedwith South Korea’s needs.
Ⅲ. Expected Effects
▶ Academic contributions
○ In a context where prior studies on international norms for family support are scarce, this research could achieve methodological originality bylinking family support studies addressing population crises withinternational law studies on social rights. By presenting the possibilitythat population decline issues can be discussed and regulated withinthe realm of human rights law, the study holds potential for broadacademic impact.
○ This study will critically examine the traditional Korean nationalitylaw’s adherence to principles of jus sanguinis (right of blood) and singlenationality. It will propose, based on international and comparative lawdiscussions, that the combination of these principles exacerbates population decline issues, such as the outflow of native-born citizens.
○ Given the lack of domestic and international prior research on militaryservice system reforms due to reduced conscription resources, thisstudy could theoretically establish international standards that mightinfluence the adoption of military service systems across countries. Thisfoundational work would encourage further research in international law on this topic.
▶ Policy contributions
○ By conducting international and comparative legal research on family support,this study can serve as a foundational resource for legislative and policyefforts aimed at addressing population decline and low birth rates.
○ Through a comprehensive analysis of relevant international laws andforeign legislation on jus sanguinis (right of blood) vs. jus soli (right ofbirthplace), and single vs. dual nationality, this research proposesdirections for nationality law reform to secure, expand, and retain citizens.
○ By presenting international standards affecting military service andtrends in military system reforms across countries, this study can beused as a foundational reference for developing policies and systems to secure military resources.