North Korean Escapees’ Right to Enter South Korea: An International Law Perspective

This essay poses the question of whether North Korean escapees have a right to enter and reside in South Korea under international law. The answer to this question may seem obvious to those unfamiliar with inter-Korean relations. Of course, all countries have the right to determine whether foreigners may gain entry to their countries; that is a fundamental attribute of sovereignty. In the context of the Korean peninsula, however, the answer is not so simple. Under South Korean law, individuals born in North Korea are normally considered South Korean nationals, and under the International Covenant on Civil and Political Rights and (arguably) customary international law, countries have a general duty to allow entry and residence to their own nationals. The interesting question, then, is whether this general duty extends also to the specific circumstances of the Korean peninsula, when most North Koreans have relatively little connection to South Korea, despite their formal South Korean citizenship. After considering different aspects of the issue, this essay will conclude that South Korea does have a duty to accept North Korean escapees under the International Covenant on Civil and Political Rights. However, this duty is solely treaty-based, and customary international law does not currently impose any analogous requirements