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This is part of a submission to the Korean court to assist judges in understanding the international norms for the case of Adam Crapser vs. the Republic of Korea. The 70-page long submission was fully translated into English by Korean students studying in the U.S. Special thanks to Raymond Ha (M.A. '21, Stanford Univ.), Hyejin Jang (B.A. '21 Princeton Univ.), Do Yon Lena Kwon (J.D. Candidate '22, Penn Law), Hailey M. Lee (J.D. Candidate '24, Penn Law), and Lydia Lim (J.D. '21, Penn Law).
By Lee Kyung-eun
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Answer: Nationality is a fundamental human right, also called "the right to have rights." International norms protecting nationality as an individual's rights have continued to develop through major human rights treaties sine the 1948 U.N. Universal Declaration of Human Rights.
From the perspective of the child who must start a new life with a new family in a different country, the acquisition of citizenship of the country of his or her residence is the minimum safety net that can guarantee the most basic protections.
Without reference to any international legal standard, the relevant laws of Korea, such as the Act on Private International Law and the Nationality Act, as well as the legislative intent of the Special Adoption Act, collectively imply that the government is responsible for verifying the finalization of these matters.
The 1966 International Covenant on Civil and Political rights stipulates that upon a child's birth, he or she has the right to be registered, have a name, and acquire a nationality without any discrimination. U.N. Committee on the Rights of the Child, in particular, imposes the duty upon the state to prevent a child from being discriminated upon due to the child's parents' legal, social status, such as the birth out of marriage.
The 1967 European Convention on the Adoption of Children emphasizes that a child's severance of ties with birth parents as a result of inter-country adoption need not necessarily lead to the loss of citizenship in the country of origin. Rather, this Convention stipulates that it is the state party's obligation to ensure that the child promptly obtains citizenship in the receiving country that is to become the child's country of residence.
The U.N. Convention on the Rights of the Child states that an inter-country adopted child must enjoy the same safeguards as one adopted domestically and the measures should be interpreted to include the acquisition of citizenship of the receiving country.
The government of the Republic of Korea was aware of the need to confirm an inter-country adoptee's acquisition of foreign citizenship starting from the Korean Nationality Act and Special Adoption Act, which specify the obligations of the related agencies to confirm and report such acquisition.
From the earliest time of implementing the Nationality Act and Special Adoption Act, the legislation stipulated a process of confirming whether a child adopted to a foreigner had obtained the citizenship of the foreign country and reporting to the Ministry of Justice (MOJ). The MOJ enforced this regulation and canceled the Korean citizenship of a child who obtained a foreign citizenship by inter-country adoption. Additionally, the Ministry has been keeping and publishing a list of names of the adopted children whose Korean citizenship were invalidated in the Official Gazettes.
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As seen in the figure above, dozens of names are listed in one chart organized by each adoption agency. It is evident from these records that the adoption agencies and the Ministry of Justice regularly and routinely maintained these reports and publications of official records, and the relevant authorities would have clearly discerned the confirmation and reporting process regarding the acquisition of citizenship.
The Nationality Act chiefly aims to preserve the Korean citizenship system, prevent statelessness, and protect its citizen's rights. It is only proper to interpret the duty to report an inter-country adoptee's acquisition of citizenship according to this system as a protective measure for its own citizens, and only held the meaning of invalidating Korean citizenship when a foreign citizenship was acquired. Thus the purpose of requiring the adoption agency to report the citizenship acquisition of children sent overseas for adoption must be interpreted as an extension of such purpose. The system should be considered as one that exists not only to prevent dual citizenship, but also to guarantee its citizen's safety.
The negligence and breach of such responsibility of the Korean government and adoption agency, in part, caused the current situation where tens of thousands adoptees from Korea are estimated to live in the U.S. without citizenship suffering from extreme vulnerability.
Holt, in its court submission, is arguing that it was not aware of such a responsibility at the time of the plaintiff's adoption. It had already been engaged in adoption business between Korea and the U.S. for over 20 years at that time, and there had been a series of controversies inside the U.S. over various unethical and illegal cases. Inter-country adoption is conducted only by partner organizations with MOUs. It is unacceptable that Korean adoption agencies were unaware of dangers presented by the process while working in such close cooperation. Furthermore, the Holt Agency alleges it has been carrying out post-adoption services since 1975, including "foreign adoptees' visit to home land" and collecting fees from adoptive parents. It is unacceptable that the agency was unaware of its obligation to confirm whether the adoptees had obtained citizenship.
Under the law of the Republic of Korea, there is a clear imperative to protect children and ensure their welfare with regards to procedural matters stipulated in relevant laws. The core mechanism for ensuring the public welfare purpose is the government's responsibility to supervise it. However, to the contrary, it has been revealed that the regulation, supervision and audits of adoption agencies by impartial and professional public authorities have been extremely lacking.
The obligation to confirm the acquisition of citizenship by an inter-country adoptee belongs to both sending and receiving countries. It is obvious not only under international norms but also under then Korean law. The failure of the Korean government and adoption agencies to fulfill such an obligation is a clear and significant human rights infringement and a violation of Korean law.
Lee Kyung-eun (Ph.D. in law) is the director of Human Rights Beyond Borders and author of the Korean-language book, "The Children-selling Country," and the English book, "The Global Orphan Adoption System; South Korea's Impact on Its Origin and Development."
