Establishment and Future Directions of the Korean Nationality Act
Choi Hyun Woo
A nationality law is an outgrowth of sociopolitical adaptations. Basic principles of nationality laws originated from Europe and were applied into modern nationality laws depending on sociopolitical circumstances. France, Germany, and Japan flexibly changed their nationality principles and laws throughout history. Likewise, this paper will demonstrate how the Korean Nationality Act is an outcome of continuous adjustments to sociopolitical demands in the first half of the twentieth century. It argues that the first Nationality Act was the product of the Japanese colonial family registry system, the confiscation policy under the US occupation government, and ethnic nationalism movements around the world. A series of revisions on the law relaxed naturalization criteria, but the Nationality Act has not caught up with the changing landscape of Korea in the twenty first century. While there is a significant increase in immigrants, refugees, and North Korean defectors, there has also been a major decrease in the ethnic Korean population. Under the current law, people acquire Korean nationality based on their parental bloodlines. This criterion deprives foreign residents of their basic rights, including health care, education, and protection from the government. Furthermore, it reduces the economically active Korean population, which pushes Korea towards an economic downturn. By examining the conditions that led to the establishment of the current Korean Nationality Act and highlighting the communal benefits of expanding the nationalization criteria, this paper argues for wider nationalization criteria that are based on residency in modern day Korea.
Republic of Korea (1948 ~ Present): Korean Nationality Act 18
Part Three: Limitations of the Korean Nationality Act in the Twenty First Century
Increased Stateless Residents and Lack of Basic Rights 27
Population Decrease and Economic Downturn 31
Conclusion: Introduction of Jus Domicile (Law of Residence) 32
I have tremendously benefited from encouragements and insights of many people over the course of this paper. I would like to first thank my thesis advisor Professor Charles Armstrong, Professor Kim Brandt and Yumi from the MA Workshop, Linh at the Writing Center, Cory who always generously helps me, and a life-long fan of my writing, my father. I have sometimes wondered what would happen if I did not have their close support.
People have made my process of the MA program enjoyable and meaningful. I was fortunate to start graduate study by financial supports from Hangnimsa and Jongtosa Kwanjajehoe. Over lunches, Cory, Michael, and Doo Ri helped me to settle down, and the good times with Ji Soo, Sung Hee, and Eun Sung led me to begin enjoying and exploring graduate study. I am especially grateful to people in Korea. My personal counselors, my mother and monk Nung In, helped me deal with the ups and downs. I also want to express my gratitude for late night talks over phone with my brother and friends. I am indebted to unfailing encouragements from my professors, friends, and family. Thank you all.
For My Family
Introduction: Nationality Law as a Sociopolitical Product
The Korean Presidential Transition Committee nominated Kim Jong Hun as Minister of Future Creation and Science in February 2013.1 However, he resigned his candidacy one month later. The major controversy about this nomination was his foreign nationality. He is a Korean-American who had renounced Korean nationality after he had immigrated to the US, but recovered Korean nationality when he was nominated for the candidacy. Public opinions were divided. Supporters reasoned that he is ethnically Korean and competent for the position. On the other hand, opponents argue that he was an American citizen up until he was nominated, which made them suspicious that he only changed nationality so he can be in office. They also feared he might make decisions with US interest in mind, because he used to serve as a member of the CIA panel. Although the public had questions about Kim’s intentions and competency for the position, the debate centered primarily on whether residency or ethnicity should be the main criteria of defining who is Korean.
Various definitions of who is “Korean” coexist and change over time. The supporters of the nomination defined Koreans as descendants of ethnic Koreans. The opponents classified Korean as people who acquired Korean nationality through the Korean Nationality Act. However, these seemingly different opinions actually overlap. The Korean Nationality Act legitimatizes Korean nationals through Korean parents. This criterion was not problematic when the majority of Koreans rarely traveled abroad, as they did in the past. However, globalization has changed this situation. Ethnic Koreans emigrated abroad, and foreigners acquired Korean nationality through naturalization. Thus, Korean nationals may not be ethnic Koreans, and vice versa. The Nationality Act, emphasizing Korean ethnicity, encounters difficulties recognizing and controlling residents, such as North Korean defectors and children of immigrant and refugee families. These stateless residents are left without basic rights. Given the current multi-ethnic demographic in Korea, there are questions regarding the applicability of the Korean Nationality Act, which emphasizes Korean ethnicity.
The Nationality Act’s ethno-centric characteristic is a product of Korea’s sociopolitical history. The Japanese colonial experience and the United States military occupation in the twentieth century defined the characteristics of the Nationality Act. The colonial government categorized who was and was not Korean through its family registry system. The registry system organized people by family, in which fathers were the heads. After the liberation, the US occupation government used the family registry system to legally differentiate Koreans from Japanese. The government’s confiscation policy recovered Korean assets from the Japanese and legalized the family registry system’s criteria of who was defined as Korean. The criteria evolved into the Interim Ordinance about Korean Nationality that, in turn, became a foundation for the first Korean Nationality Act of the Republic of Korea. These sociopolitical factors created the ethno-centric characteristics of the Nationality Act. International ethnic nationalism of the twentieth century was also an important factor. Establishment of other countries’ nationality laws is also comparably situational. Japan’s pre-existing family registry system led its nationality law to emphasizing parental bloodlines, and France’s nationality law shifted back and forth between different principles to accommodate its shifting sociopolitical needs over time. Germany responded to immigrants’ demands and so allowed them to acquire German nationality based on residency. Nationality laws were established upon a series of adaptations to sociopolitical situations, so they are inherently adjustable.
Countries have adjusted their nationality laws by changing their nationality principles according to a spectrum with jus sanguinis and jus soli at the ends. Jus sanguinis is a criterion to define nationality that originated from ancient Roman law. It literally means “law of blood,” individuals acquire their nationality through their parental blood line. According to the Roman law, people were categorized as slaves or free people. John Crook explicates that “free people are either free by birth, ingenui, or free by grant of freedom from slavery, ‘freedmen’, libertine.” What distinguished people was the free status, and people inherited the free status from their parents.2 Jus sanguinis originated from this practice of succeeding the free status through parental bloodlines.
The counterpart to jus sanguinis is jus soli, which originated from the medieval European concept of ligeance. It literally means “law of soil,” individuals acquire their nationality based on their place of birth. Kwon Young Sol finds the origin of this principle in the feudalism of medieval Europe.3 Myoung Soon Koo, Lee Chul Woo, and Kim Kee Chang provide a specific example that captures the birth of this principle: in the medieval England, heirs needed bishops and neighbors to prove their right to inherit. An English man wanted to inherit his family property. However, he was born outside England, so there was no one to prove his legitimacy. To solve this problem, a new law was introduced, according to which a person who was loyal to the king could exercise a right to inherit although the person was born outside the King’s ligeance.4 A place of birth became an issue in this legal case, and it shows the emergence of legal rights attached to the birth place and the origin of jus soli. Jus sanguinis and jus soli evolved and were applied into nationality laws. Countries established their nationality laws based on these principles and continuously adjusted to changing atmospheres.
This paper will focus on the establishment and direction of the Korean Nationality Act in the context of Korea’s internal and external sociopolitical changes. Myoung, Lee, and Kim previously explicated the development and future of the Nationality Act, focusing on legal aspects.5 This paper expands their legal analysis to sociopolitical aspects. Sociopolitical aspects from the Japanese colonial period to the Republic of Korea are examined. The examination further expands its scope to other countries’ cases. The paper analyzes French, German, and Japanese nationality laws from the origins of nationality principles to the emergence of the nation-state and national identity, and finally the creation of nationality law. This comparative view enables the paper to explore whether Korea has unique aspects or shares common ground with other countries. Connections and mutual influences among different countries become clear in this comparative narrative. It further aims to uncover a sequential linkage from Europe to Japan and Korea. This paper also analyses the suitability of the Nationality Act in the present day Korea. Choi Kyeong Ok, criticized that immigrant families lack basic rights in the Korean legal system.6 New revisions of the Nationality Act can better protect rights of immigrant and refugee families and North Korean defectors and boost the decreasing Korean population. This paper will study a relationship between sociopolitical factors and the establishment of the Korean Nationality Act in order to propose new revisions to the Nationality Act as the most effective method to solve current problems in Korea.
Part One: Emergence of Nation-state and Establishment of Nationality Law in the Nineteenth Century
Emergence of State Polity and National Identity
At first, nationality law was a byproduct of nation-state building in the nineteenth century. The medieval idea of allegiance evolved by adopting an ecclesiastical idea and developed a primitive sense of the nation community among people living in a kingdom. Myoung, Lee, and Kim claim that the medieval concept of allegiance created a new legal discourse by adopting an ecclesiastical idea.7 The Church insisted that the believers were connected to Jesus Christ through faith, and believer had constructed the Church as the mystic body. This concept was adopted as the people, living in the King’s ligeance, were connected to the king through the law. This relationship created a new bond and equality among the subjects of the king. Myoung, Lee, and Kim insist that this new sense of equal status evolved into the French Revolution that upheld liberty, equality, and benevolence after about 100 years. The eighteenth century jurist, William Blackstone, claimed that “the first and most obvious division of the people is into aliens and natural born subjects.”8 The division between the free people and the bondservants was transformed into the division between foreigners and citizens. This new discourse evolved into the creation of the modern nation.
Prior to the formation of modern nation, European states replaced the medieval kingdoms and emerged as a dominant polity in the nineteenth century. State as a polity had actually existed since the fifteenth and sixteenth centuries. Diverse forms of polity, such as empire, city, and state, had existed together. However, Italian cities shrank at the end of the eighteenth century, and the Holy Roman Empire also disassembled in 1806. State was eventually left as the dominant type of polity by the nineteenth century. John Lie argues that the state polity could survive the power battle among various polities because it integrated people and created a peoplehood identity. Capitalist industrialization started in the 18th century and increased the size and duration of wars among polities. To win the wars, the polities needed more war supplies and soldiers than before. Consolidation of people intensified and expanded the states’ rules and allowed the states to promote taxation and conscription. It strengthened their war-making capacity and enabled the state polity to win the competitions among diverse polity.9 The states amalgamated cities and kingdoms then started to reorganize the European politics as the interstate political structure since the nineteenth century.10
In the process of developing a nation-state polity, a primitive sense of community evolved to a more mature idea of national identity. This change grew in England and exploded at the French Revolution in 1789. An owner of the sovereignty changed from the king to the people, and the absolutist state transformed into the nation-state. The Revolution’s mottos, such as liberty, equality, and popular sovereignty, were spread across Europe. Popular democracy and nationalism swept the nineteenth century Europe. People gathered around the nation, and this national community reserved equal rights to the members. On the other hand, this unity also functioned to exclude people who are not members of the nation. This exclusivity enhanced the sense of belonging and the national identity among the members. Lie claims that “all infra-national attachments became appropriated in the name of the collectivity.”11 Local attachments and loyalties transposed on the national identity. The national identity was a continuation of family, lineage or village identities. The circle of ties expanded from the family to the nation and created the national identity.12 The strengthened national unity consolidated local identities and transformed them to the national identity.
Establishment of Nationality Law: France, Germany, and Japan
This rise of national identity enhanced the exclusivity of the nation and created a problem with determining membership. Each nation-state flexibly decided its nationality principle according to a spectrum with jus sanguinis and jus soli at opposite ends, and developed its nationality laws depending on its needs and conditions. In France’s case, its decision shifted back and forth between the two principles before, during, and after the Napoleonic regime. France’s nationality law is generally considered to be a representative case of jus soli. However, Patrick Weil insists that the France Nationality Act had adopted jus sanguinis, and the French Revolution was one reason. The French society was exceedingly unstable as the Revolution became extremely aggressive and radical. People felt insecure and found it increasingly difficult to trust each other. This anxiety targeted foreigners. The 1793 Constitution expressed strong distrust against foreigners and imprisoned some of them. The French Civil Codes, under Napoleon in 1804, adopted jus sanguinis to consolidate the nation against foreigners. This action in a way stabilized the society. However, a large number of immigration into the border areas created new problems since 1851. For instance, a French man needed to serve 8 years of military obligation but a foreigner only enjoyed advantages of staying in France but did not perform this duty. To solve this kind of immigrant issues, jus soli replaced jus sanguinis in the French Nationality Act of 1889.13 France flexibly changed its nationality principle depending on its situation.
France further adjusted its nationality principle and Nationality Act several times in the twentieth century, because, while their native population decreased, their immigrant population increased dramatically. France needed immigrants to supplement its decreased population after World War I. The 1927 Nationality Act alleviated requirements for naturalization to be more inclusive of immigrants into the French population. However, the influx of immigrants exploded after World War II and created anti-immigrants sentiments. This demand pushed the French government to revise the Nationality Act and restrict immigrants in 1993. Myoung, Lee, and Kim argue that the 1993 revision was a significant change to adopt a different nationality principle, jus domicile.14 This principle literally means law of residence. Children of foreign parents are not anymore able to automatically acquire the French nationality although the children are born in France. These children are required to vow when they were between 16 and 21 years old if they want to acquire the French nationality. As we can see, the French Nationality Act is a product of practical adaptations to changing situations.
The Napoleonic regime’s influence was not only felt in France. The Napoleonic Wars motivated Germany to establish a nationality act based on jus sanguinis in 1870 and the German Empire in 1871. The German Empire was derived from the Holy Roman Empire. Lie claims that the Holy Roman Empire loosely incorporated over hundred states and nearly fifteen hundred lordships, and they were linguistically and culturally diverse. The Napoleonic Wars disassembled the Holy Roman Empire and created anti-French sentiments among these people. This change triggered these diverse peoples to unify as the German nation and establish the German Empire. The resistance and antagonism against the foreign force created the German consciousness. An idea of the great German ethnicity as a cultural unity emerged.15 The linguistically and culturally diverse groups united and transformed into one nation. The first German Nationality Act was based on law of blood to promote the great German ethnicity. The Nationality Act was designed to support this ethnic identity and help evolve it into an ethnic nationalism based on German supremacy. Multiple revisions during Nazi Germany created the increasingly exclusive Nationality Act. The German Nationality Act became the representative case of jus sanguinis under these circumstances.
However, the Germans faced internal and external pressures to revise their Nationality Act and make it more inclusive of other ethnicities after World War II. Ethnic nationalism was internationally prevalent after WWII, but Germany was in a way exceptional. Lee Yong Il insists that ethnic nationalism could not reemerge in Germany because of traumatic experiences from extreme ethnic nationalism during the war. Nazi massacres of other ethnicities based on German supremacy and their defeat in the war practically prohibited the reemergence of ethnic nationalism. Public opinions to openness grew positive. The Nationality Act was revised to newly allow multiple nationality, renunciation of the German nationality, and naturalization by marriage. Further revisions aimed to be more inclusive. A large number of Turkish immigrated in 1960s, and the German population continued to decrease. Most of all, the German reunification in 1990 significantly catalyzed change.16 Finally, the Nationality Act largely adjusted its jus sanguinis principle and limitedly adopted jus soli in 2000. Children of foreigners could acquire the German nationality if their parents fulfill certain residential requirements. After World War II as a turning point, the Nationality Act no longer adheres to jus sanguinis. The formations of French and German nationality acts and their principles reveal how they pragmatically adapted to political demands of the time.
This tendency is not only observed in the case of European countries. Firstly, Asian countries also adopted the nation-state polity to enter the international political order. Japan was a vanguard of the Asian countries’ nation-state building. Japan increasingly communicated with the West during the Tokugawa period, and full-fledged nation-state building started since the Meiji period.17 The nation-state polity was first introduced during the Meiji period. The nation-state polity was adequate to rule people and strengthen military, so the Japanese reformers wanted to reorganize the country as a nation-state to modernize the country and be competitive in the international politics. Andrew Gordon argues that the Meiji reformers first used the Meiji Emperor to establish a state polity and gather people as one nation. Previously, an emperor was not the center of the Japanese politics, and people merely had a sense of one nation.18 A military ruler, Shogun, used to reside in Edo, now known as Tokyo, and rule the country. Daimyo divided other areas into domains and autonomously ruled their domains. The daimyo were under control of the Shogun but still maintained relative independence. The reformers reorganized this political structure to establish a modern state. The Emperor replaced Shogun, and a central state directly governed the domains that were turned into prefectures. The reform also eliminated the samurai status system in August 1871, and people gathered as equal members of the Japanese nation. This idea of the Japanese nation introduced the shared traditions, language, and ancestors among the people who previously did not have this sense of identity. Takashi Fujitani insists that the emperor as the symbol of the Japanese nation-state and Shinto as the representation of the Japanese spirit are inventions from this nation-state building.19 The Meiji reformers tried to eliminate feudalistic characteristics and implement a modern nation-state polity.
The reformers also modernized Japan’s legal system. The first Japanese Nationality Act was established in 1899. The Nationality Act adopted the prewar German Nationality Act and its jus sanguinis principle. Law of blood was applicable to Japan’s own family registry system and created an image of the Japanese nation-state as one large family. According to Yim Kyung Taek, a prince, Ito Hirobumi, first introduced the concept of jus sanguinis to Japan in 1882. After Ito listened to the German jurist Isaac Albert Mosse’s lecture about the German and the British nationality laws, he hired this German jurist to modernize Japan’s legal system in 1886.20 In addition to this German influence, the Japanese Nationality Act was based on jus sanguinis because it was applicable to Japan’ pre-modern family registry system.21 The family registry system organized people by family. A father was the head of a family, and rest of the family members were listed under the father. This system clarified an individual’s status and hierarchically organized Japanese society. Jus sanguinis of the Nationality Act legalized this system and newly created an image of the Japanese family nation-state. The reformers insisted that people belonged to a family that their fathers were the head, and the family was part of the larger Japanese family that the Emperor was the head.22 The family registry system, combined with the Nationality Act, continuously played an important role to define who the Japanese were. The Japanese nation-state became one giant family of the Emperor, a descendant of the eternal blood line.