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Transnational law and borders in the Korean peninsula and beyond Min, Jeewon 2014

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     TRANSNATIONAL LAW AND BORDERS  IN THE KOREAN PENINSULA AND BEYOND    by  Jeewon Min  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF   DOCTOR OF PHILOSOPHY in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (LAW) THE UNIVERSITY OF BRITISH COLUMBIA (VANCOUVER)  May 2014  © Jeewon Min, 2014 ii Abstract   This dissertation analyzes the ways in which internal, national, and international borders are embedded, constructed, and reinforced in the legal frameworks, enforcement patterns, and discursive practices on the Korean peninsula and beyond.  Through a series of focused case studies on particular border sites, this dissertation reveals the ways in which law, as material reality, ideology, metaphor, and technology, enables and disables the movement of persons, things, and symbols across borders.  The case studies begin with those borders constructed within and between two Koreas and then move outward to those that limit the movement of people beyond the Korean peninsula.   The first case study analyzes North Korea’s efforts to regulate internal migrations through systems of residence registration, labor allocation, and travel certificates as part of its centrally planned economy.  The dissertation then turns to the attempt to relocate a capital city in South Korea and the ways in which laws and practices, including written and customary constitutions, act as gatekeepers in Pyongyang and Seoul.  The following chapter analyses the gendered construction of the “Socialist Big Family” in North Korea, paying particular attention to the manner in which borders are constructed to contain the female body.  The dissertation then moves to an analysis of the law making it a criminal offence in North Korea to cross the national border, and draws on the legal response to the practices of East German border guards in using firearms to prevent the movement of people across the Berlin Wall.  Further, in an attempt to understand the refugee border, the dissertation examines asylum cases on illegal exit from other countries in the U.S. to consider the possibility for North Korean asylum seekers.  It assesses the work of Canada’s Immigration and Refugee Board in determining North Korean refugee claims from 1990 to 2011.  In the iii final case study, I apply a gendered analysis of the definition of refugee in international law to the restrictions on the right to leave North Korea.  To conclude, legal relations between and within borders are mutually exclusive as well as interconnected, and daily border-crossings challenge the existing legal structure for transnational justice.     iv Preface  A version of Chapter Eight has been published in Veronica P. Fynn, ed., Documenting the Undocumented: Redefinining Refugee Status (Boca Raton, FL: BrownWalker Press, 2010).                       v Table of Contents  	  Abstract .................................................................................................................................... ii Preface ..................................................................................................................................... iv Table of Contents .................................................................................................................... v List of Tables ........................................................................................................................ viii List of Figures ......................................................................................................................... ix Acknowledgements ................................................................................................................. x Dedication ............................................................................................................................ xvii 1. Introduction ......................................................................................................................... 1 1.1. Mapping Two Koreas: 38th Parallel in Geopolitics and Everyday Life ............................. 1 1.2. Law and Borders in the Korean Peninsula and Beyond .................................................... 8 1.3. Law, Border, and Society: Performance of the Border .................................................... 10 1.4. Borders and Law as a Technology ................................................................................... 14 1.5. Law as Culture and Metaphor .......................................................................................... 18 1.6. From Transnational Law to Transnational Justice ........................................................... 20 1.7. Research Method ............................................................................................................. 32 1.8. Chapter Arrangement ....................................................................................................... 34 2. Policing Internal Borders: “Internal Passport Regime” in North Korea .................... 41 2.1. Introduction ...................................................................................................................... 41 2.2. The System of Registration as a Technique of ‘Governmentality’ .................................. 43 2.3. From Colonial Governmentality to Socialist Governmentality ....................................... 54 2.4. Registration, Management and the Certificate of Identity in North Korea ...................... 61 2.5. The System of Registration: A Residence Permit ............................................................ 68 2.6. Residence in Pyongyang .................................................................................................. 73 2.7. The Centrally Planned Economy ..................................................................................... 78 2.8. Conclusion ....................................................................................................................... 90 vi 3. The Nation’s Capital as a Constitutional Space: Seoul and Pyongyang ...................... 92 3.1. Introduction ...................................................................................................................... 92 3.3. The Nation’s Capital as a Constitutional Space and National Identity ............................ 94 3.4. Constitutional Custom and Invented Traditions ............................................................ 102 3.5. The Spatial Heart of the Nation, History, and Invented Traditions ............................... 106 3.6. The Status of the Modern Capital and the City Identity ................................................ 111 3.7. Conclusion ..................................................................................................................... 115 4. The Chosŏn Body as a Gate and Frontier of ‘the Socialist Big Family’ in North Korea ............................................................................................................................................... 120 4.1. Introduction: Boundaries, Pollution, and Order ............................................................. 120 4.2. The State as a Socialist Big Family ............................................................................... 122 4.3. Family Law between the Private and the Public ............................................................ 126 4.4. Border Transitions from Home to Street ....................................................................... 131 4.5. At Borders between the Inner and Outer ....................................................................... 137 4.6. Border Narratives from an Iconic Figure: Yŏllyŏ and Hwanhyangnyeo ........................ 148 4.7. Purity and Danger of the Socialist Big Family at Frontiers ........................................... 155 4.8. Conclusion: Frontier Violence in Boundaries ................................................................ 163 5. The Use of Firearms by North Korean Border Guards against Emigrants and the Necessity of National Security: The Lesson from the East German Border Guard Case ............................................................................................................................................... 166 5.1. Introduction .................................................................................................................... 166 5.2. Background .................................................................................................................... 168 5.3. The Right to Leave One’s Own Country: Emigration and Criminal Law ..................... 173 5.4. The East German Border Guard Cases .......................................................................... 184 5.5. The Right to Leave and The Principle of Proportionality .............................................. 190 5.6. The Principle of Proportionality in Transitional Justice ................................................ 197 5.7. Conclusion ..................................................................................................................... 204 6. Punishment for Illegal Departure from North Korea as a Legal Ground for Asylum and Refugee Status in the United States ........................................................................... 207 6.1. Introduction .................................................................................................................... 207 vii 6.2. North Korean Asylees and Refugees in the U.S. ........................................................... 209 6.3. The Definition of Refugee and ‘Illegal Departure’ Cases in the U.S. ........................... 215 6.4. The Chinese Laws and Regulations ............................................................................... 224 6.5. ‘Illegal Exit’ Cases in Canada ........................................................................................ 229 6.6. Internal Flight Alternative and Illegal Departure ........................................................... 235 6.7. Conclusion ..................................................................................................................... 238 7. Surrogate Protection in Canada and Potential Nationality in South Korea: Does a North Korean Asylum-Seeker have a “Genuine link” to South Korea? ....................... 241 7.1. Introduction .................................................................................................................... 241 7.2. Statistics on North Korean Refugees in Canada ............................................................ 244 7.3. Dual or Multiple Nationality and “Theoretical Protection” ........................................... 249 7.4. Responses to Information Requests (RIRs) ................................................................... 253 7.5. Laws on South Korean Nationality for North Koreans ................................................. 256 7.6. “Potential Countries of Nationality”: Kim v. Canada .................................................... 262 7.7. IRB Decisions on North Koreans .................................................................................. 268 7.8. Conclusion ..................................................................................................................... 271 8. The Right to Leave Her Own Country and the Definition of Refugee: The Case of North Korea ......................................................................................................................... 273 8.1. Introduction .................................................................................................................... 273 8.2. The Right to Leave One’s Own Country in International Law ..................................... 274 8.3. The Refugee Definition for Female Border Crossers in North Korea ........................... 278 8.4. Conclusion ..................................................................................................................... 286 9. Conclusion ....................................................................................................................... 288 Bibliography ........................................................................................................................ 297    viii List of Tables  TABLE 1 THREE CATEGORIES IN THE 1993 GUIDELINE ON THE RESIDENTS’ REGISTRATION BOOK ......................................................................................................................................... 178 TABLE 2 REFUGEES ORIGINATED FROM DEM. PEOPLE’S REP. OF KOREA (UNHCR STATISTICAL ONLINE POPULATION DATA) ................................................................................... 242	  TABLE 3 ADMISSIONS OF NORTH KOREANS AS REFUGEES IN CANADA ............................ 245	  TABLE 4 THE INDIVIDUAL NUMBER OF REFUGEE CLAIMS AND ADMISSIONS OF NORTH KOREANS IN CANADA .............................................................................................. 247	       	  	  	  ix List of Figures  FIGURE 1 1950. 8. 24.  A PROCESSION OF REFUGEES ........................................................... 1 FIGURE 2 PANMUNJEOM (JOINT SECURITY AREA BETWEEN NORTH AND SOUTH KOREA) .... 5 FIGURE 3 THE CHINESE-KOREAN BORDER FENCE ALONG YALU RIVER IN DANDUNG IN CHINA ................................................................................................................................... 15 FIGURE 4 CHECKPOINTS ON THE ROAD IN NORTH KOREA ................................................. 17 FIGURE 5 THE OFFICIAL DOCUMENT FOR THE REGISTER OF KIRYU ...................................... 58 FIGURE 6 THE CERTIFICATE OF GONGMIN IN 1948 ............................................................. 64 FIGURE 7 THE CERTIFICATE OF GONGMIN .......................................................................... 66 FIGURE 8 SEOUL SEONGGWAK (FORTRESS WALL) .......................................................... 104 FIGURE 9 KIM IL SUNG’S BIRTH-HOUSE ........................................................................... 107 FIGURE 10 PUBLIC LIBRARY (INMINDAEHAKSŬPTANG) IN KIM IL SUNG PLAZA ................ 109 FIGURE 11 KIMSŎNGMONG CH’Ŏ YŎLLYŎMUN (金石夢  妻  烈女門) .................................... 151 FIGURE 12 A TABLET FOR A VIRTUOUS WOMAN [YŎLLYŎJŎNGNYŎGIP’YŎNAEK] AND ARCHIVE ................................................................................................................................. 151 FIGURE 13 THE BERLIN WALL ......................................................................................... 176 FIGURE 14 GRANT RATES ................................................................................................ 246 FIGURE 15 ADMISSIONS OF NORTH KOREANS AS REFUGEES IN CANADA: THE NUMBER OF CASES AND INDIVIDUALS ......................................................................................... 248 FIGURE 16 DORASAN STATION ......................................................................................... 288           x Acknowledgements   Doing my doctoral degree in law was a tough journey without much guidance.  As a temporary migrant in Canada, I tracked the migrations of North Koreans within and across the Korean peninsula.  I encountered unexpected situations and conditions while interacting with people who have no idea of where I am from, what I have worked on, and why.  Truly, this journey embarked on a final paper for Prof. Soon-Kyoung Cho’s seminar about North Korean Women in Women’s Studies at Ewha Womans University.  I still carry the paper, including Prof. Cho’s written comments, with me.  Through her courses I were trained feminist methodology and research method on North Korea.  With her support I did my fieldwork at Ewha, and easily traveled to the Information Center on North Korea.  My most profound appreciation must go to Prof. Cho.  Thank you for staying spiritually with me in times of emergency!   During the time at UBC, I am deeply thankful to Prof. Nam-lin Hur in Asian Studies at UBC.  He has supported me like a supervisor with care, even when I am with my supervisor.  Always, he came back with deep trust and detailed comments as a hard-working committee member.  I remember the moment when he offered me the Academy of Korean Studies Grant for my field trip to Korea.  My essay (an earlier version of Chapter Three) after this field trip was awarded Junior Scholar Paper Prize (Second Prize) at the 6th World Congress of Korean Studies.  With his recommendation letters, I could receive the Korean Canada Scholarship and the Vancouver Korean-Canadian Scholarship.  On top of that, he invited me to his several workshops including unbelievable meals.  It was not a coincidence that I met Prof. Jong-Seong Choi at the Dept. of Religious Studies, Seoul National University and Kyuhoon Cho, a visiting researcher at the Institute of Asian Research (IAR) in Prof. xi Hur’s workshop.  Prof. Choi introduced me Mary Douglas’s book, Purity and Danger, and Dr. Cho, recommended important articles about North Korea for Chapter Four.  Luckily, an earlier version of the chapter led me to being awarded Victoria Fisher Memorial Prize (First Prize) by School of Law, University of Leicester in 2014.  I would not be able to continue to stay at the UBC without Prof. Hur’s help.   Prof. Sophia Woodman at the University of Edinburgh, a former activist for human rights in China, has been my sincere mentor and friend with warm heart since we met at IAR.  She carefully listened to my unorganized questions, offered me scholarly literature, shared her innovative syllabi with me, and did meticulous editing and detailed comments for Chapter Four.  It was very thankful when she was willing to present her paper at my symposium, Two Koreas: Borders and Migration, at the Univ. of Victoria (UVIC).  The Korean communities at UBC, UC Berkeley, Harvard University, and other venues have been warm environments.  Prof. Kyung-Ae Park at IAR generously provided me a carrel for longer than a year, and invited graduate students to Korean Consul General Yeon Ho Choi’s official residence for a grand dinner.  This tells a story about how a couple of years later the Consul General drove down to the UVIC from Vancouver to be a keynote speaker for my symposium.  I also thank Prof. Timothy C. Lim at California State University and Prof. Wayne Patterson at Norbert College who presented at the symposium, and Prof. Chulwoo Lee at Yonsei University for tips to publish articles in journals.  Prof. Jun Yoo, Prof. Seungsook Moon, Nicole Restrick Levit, and Fernado Rojas let me participate in the Social Science Research Council Korean Studies Dissertation Workshop.  Helen Kim, a librarian in Asian Library at UBC, provided me North and South Korean literature from the National Assembly Library in South Korea.  I was lucky enough to meet people who shared their time, xii energy, information, and knowledge with me: Misun Lee, Kilim Park, Sung Ju Beth Lee, Yougsung Park, Jee-Yeon Song, Bong-gi Sohn, Seonok Lee, Jeongeun Park, Jeonghye Son, Sinae Park, Dan Sik Yoo, Gabriel Jiwoong Lee, Jane Lee, Eunkyung Daura Choi, Dahye Chang, Sang-Hoon Yeo, Yeohyun Yoon, Taeyeon Eom, Iljong Sim, Jayoung Kim, Suok Jeong, Seung Min Woo, Hyuk-jun Kwon, Tae-Youl Kim, Yoon Seong Kim, Pangun Park, EunChong Joseph Cho, Gil Young Cho, Joon Young Roh, Kee Taek Park, Hongyun So, Keunhong Jeong, Minjae Lee, Jaewon Jang, Jonghoon Im, Moonseok Kim, Chang-Yoon Park, Rakkoo Chung, Geun Koh, Yoo Jin Kim, Jongwoo Park, Kerry Lee, Eun Ha Chang, Yungsoo Lee, Jamie Chang, Hyejung Park, Marcie Middlebrooks, and Sarah Son.  Prof. Wonjung Min at Pontifical Catholic University of Chile offered me advice for organizing a conference.  It remains memorable when Prof. Sung Gi Hwang, a visiting scholar at the UC Berkeley School of Law, treated graduate students awesome pizza at Jupiter a couple of times.  I thank Hyunji Lee for tips and information about from doing a Ph.D. to teaching a course until I complete a Ph.D.  Especially, I owed special thanks to those friends who helped me move in and out: Kyunghoon (Victor) Park, Chanwoo Oh, Kyuhoon Cho, Jihee Han, Hojun Lee, Junho Hwang, Inae Kim, Hyunji Lee, Dohyung Kim, Sungjin Kim, and a mailman who let me use a cart in Berkeley. I am also thankful to the following individuals.  My old friend, Serob Lee who works for Good Friends: Center for Peace, Human Rights and Refugee sent me newsletters, booklets and books about North Korea.  Bekgyu Lee, an attorney at Kim and Chang in Seoul, emailed me his notes with specific provisions that showed the changes from 2005 to 2007 in September 2010, when the Ninth Amendment to the Criminal Law of the Democratic People’s Republic of Korea was not accessible to the public.  Prof. Patricia Goedde at xiii Sungkyunkwan University sent me comments on my proposal.  Sung Gil Kim at the Ministry of Justice offered me official statistics and information.  Kathy Btoulay, an analyst at the Immigration and Refugee Board (IRB), helped me to narrow down my questions, when I requested statistics and information of North Korean refugees in Canada to the IRB under the Access to Information Act.  This information produced Chapter Seven, and I became a run-up in the CARFMS 2013 Essay Contest by Canadian Association for Refugee and Forced Migration.  Prof. Younghoon Song at Seoul National University brought a book as a gift all the way from South Korea to join my symposium in Victoria, Canada.  I am indebted to my friends for reading, commenting or editing several chapters, and sharing photos for my dissertation.  I would like to thank Theressa Etmanski for commenting and editing Chapter Seven and Darren Yee for Chapter Five.  Dr. Bern Haggerty corrected grammars for Chapter Four, Byron R. Hauck and Dr. Mosope Fagbongbe edited some parts of Chapter Six, Kerry Lee read Chapter Five, and Taro Tsuda made editorial corrections for the conclusion.  Nara Press, Daily NK, Paju Cultural Center, and National Archives of Korea allowed me to use photos without cost.  Sung Ju Beth Lee, Mendee Jargalsaikhan, Luke Hutchison, Kankan Xie, Jeongyoung Lee, Prof. Chang-hyeon Jung, Jeongyoung Lee at Hankyoreh newspaper, Tae-Youl Kim (with Joon Young Roh’s technical assistance) happily shared their photos with me.  I am grateful to Prof. Saira Mohamed for sponsoring me as a visiting researcher at the UC Berkeley School of Law.  It was also blessing to take Prof. Gerald L. Neuman’ Immigration Law at Harvard Law School through cross-registration as a Special Student in the Program, Mobility, Society, and Governance in North America at Harvard University in spring 2010.  At Harvard, I also met Dr. Detlef von Daniels, a visiting fellow from Germany, xiv and he let me visit his class, offered me sources and articles as well as academic advice regarding the East German Border Guard case for Chapter Five, and gave me a free copy of his book.  I also thank Prof. Jacqueline Bhabha and Prof. Alison Mount for letting me take Human Rights, State Sovereignty, and Persecution: Issues in Forced Migration and Refugee Protection and Political Geography.  When I audited Prof. Mount’s course, I did not realize that she would be my external examiner.  I also thank to Prof. Leti Volpp for giving research advice for refugee cases in the U.S., and Prof. Sara Song for recommending articles regarding my topic.  Prof. Volpp’s an edited book, Legal Borderlands, gave me an idea of how to picture my dissertation.  It was inspring when Prof. T.J. Pempel gave feedback on my memo for his course, International Relations in East Asia at the Dept. of Political Science.  Feminist Jurisprudence (Prof. Kathryn Abrams) and Domestic Violence (Prof. Nancy Lemon) were among the best courses that I have taken.  Prof. Lemon was one of the impressive role models as a feminist legal expert, who has dedicated her life to battered women, and as an instructor open-minded to diversity in class.  Thank you for writing recommendation letters for me!  My visits to the two universities were possible with administrative support from Dr. Halbert Jones at Harvard University and Lauren Webb at UC Berkeley School of Law. I have met great friends who have encouraged and supported me beyond national, religious, cultural, racial boundaries at UBC, UC Berkeley, and Harvard University: Kraiyos Patrawart, Salina Makana, Nahid Jaan, Jan Vogler, Iman Djallus, Stephanie Tam, Loan C. Pham, Julie Brock, Chris Ryan, Manneke Budiman, Patrizia Richner, Angelina Balash, Evelyn Lirri, Gabriela Hilliger, Wilis Rengganiasih, Mimi Portilla, and Bushra Tsung.  I thank Karen Jew and Marietta Lao for Asian friendly and warm enviroments at IAR.  Prof. Lin Jue in Economics at Shanghai University of Finance & Economics, a visiting scholar at xv IAR, empowered me while teaching how to perform Chinese dance for people at IAR.  Thanks to Nayoon Heo, my senior at Ewha, I could meet members at Asian Women Coalition Ending Prostitution (Suzanne Jay, Grace Gatal Balbutin, Jaclyn Chang, Alice Lee, Yuly Chan, Sarah Meghan Mah, and Yoko Oikawa).  Special thanks to Suzanne for giving me a ride after every meeting and writing recommendation letters!  At the UBC law school, I thank Tsai Chien Lin, Nayelli Ramirez, Wenwei Guan, Shiva Olyaei, Adetoun Ilumoka, and Ronald Kakungulu-Mayambala.  I would never forget Judge Frank (Tsai Chien Lin)’s home-made coffee, Taiwanese tea, and his wife’s awesome sandwiches.  At the moment, I miss Father Jim (Fr. James Sheppard) at St. Ignatius Parish who cared and loved me.  I am grateful to Prof. Ian Townsend-Gault for having me as his student before being sent off to an island until his medical leave.  Prof. Harris Douglas stepped into a supervisor’s role at the final stage of my dissertation when I was unable to find another faculty supervisor.  I appreciate for his editorial corrections and comments for about a year.  I also thank the two other committee members, Prof. Gordon Christie for Chapter Five, and Prof. Janine Benedet for Chapter Four.  For my final oral defense, I owe much gratitude to my coach, Joy Lin Salzberg, in Academic English Support Program at UBC.  She and Prof. Stephan Salzburg were spritually empowering me at the last stage.  I appreciate for Prof. Ljiljana Biukovic (Associate Dean at law school)’s attendance to my oral defense, and warm message for me.  Dr. Jenny Phelps, Assistant Dean at the Faculty of Graduate and Post Doctoral Studies, made great effort in listening to me and finding alternative solutions.  Prof. Susan Porter made a generous decision for my attendance to graduation ceremony before departure from Vancouver.  I also thank the two university examiners, Prof. Steven Hugh Lee at the Dept. of History for sharing his deep insight and live information about North Korea, Prof. Benjamin xvi Perrin at law school for triggering interesting questions as well as editing, and Chair, Prof. Larry Walker for kind guidance.  Thank everyone for saving me from this prison!  There are other individuals who gave me chances to work: Many thanks to Prof. Elizabeth Sheehy for a RA position at the University of Ottawa, Prof. Amy Verdun for a sessional instructor position at the Dept. of Political Science, UVIC, Helen Landsdowne, Associate Director at the Centre for Asia-Pacific Initiatives, for a fellow position as a symposium organizer, and Professor Daniel Vickers for teaching assistantship at the Dept. of History, UBC, Prof. Alexander Dawson for a sessional instructor position at the Dept. of International Studies, SFU.  Prof. Guoguang Wu at UVIC provided mentorship for my course, Human Rights, Refugee Law and Gender: The Case of North Korea.  I also appreciate staff, Ellen Siew Meng Yap (SFU), Liana Kennedy (UVIC), Catherine Dooner (UVIC), Jason Woo (UBC), and Pete Lane at CUPE 2278 (UBC TA UNION). I have been fortunate to receive encouragement and support from my old buddies who shared sad and happy moments with me: Seonah Lee, Eunhae Cho, Junghwa Ann, Sihyeong Kim, Seonyoung Yoo, Insook Im, and Jeeyoung Hong.  I thank unnies from old days in Women’s Studies: Joo Eun Cho, Sur Ar Hahn, Dong-Ok Lee, and Insoon Cha.  For my next chapter of life, Donglim Min has gladly come down to welcome me in South Korea.  Last but not least, this dissertation would not come to life without my family’s love.  My sister (Jungwon Min), brother in law (Kunho Kim) and precious nephew (Brian Min Kim) have always been there as one big package of food, gifts and joy.  I went on a journey with law for my love toward my father, Sehong Min, who was a judge at the Court of Appeal in South Korea.  Nevertheless, it was my mother (Byoungwon Choi)’s endless and powerful love that enabled me to end this long journey.  xvii            To my beautiful mother, Byungwon (Regina) Choi  1 1. Introduction    1.1. Mapping Two Koreas: 38th Parallel in Geopolitics and Everyday Life    Figure 1 1950. 8. 24.  A Procession of Refugees (© 2011 NARA, by permission)1   The 38th parallel divides the Korean peninsula into two states within one nation.2  It was drawn for the five years of the UN trusteeship over the Korean peninsula at the Moscow Conference after the World War II.  The Soviet Union administered the North above the 38th parallel.  The US Army military governed the South below the parallel from September 8, 1945 to August 15, 1948.3  In May 1947, North Korea refused to allow the United Nations (UN) temporary Commission of Korea to conduct a plebiscite and monitor the election for a 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  1 “1950. 8. 24.  A Procession of Refugees,” 2011, reprinted from The U.S. National Archives and Records Administration & The Publisher Nunbit, in “한국전쟁 발발 61주년… 사진으로 보는 그때” OhmyNews (24 November 2011), online: OhmyNews <http://www.ohmynews.com/NWS_Web/View/at_pg.aspx?CNTN_CD=A0001586701>. 2 In Merriam-Webster’s encyclopedia, the nation-state is defined as “a form of political organization under which a relatively homogeneous people inhabits a sovereign state.” “Nation-state,” online: Merriam-Webster <http://www.merriam-webster.com/dictionary/nation-state>. 3 “Modern Korean History Portal” Wilson Center: Digital Archive, online: Wilson Center <http://digitalarchive.wilsoncenter.org/theme/modern-korean-history-portal>. 2 legitimate government in the Korean peninsula.4  The plebiscite proceeded in South Korea and in May 1948, Syngman Rhee became president.5  The Republic of Korea was formally established on August 15, 1948.6  On August 12, 1948, the US declared that the South Korean government was “the Korean government.”7  The United Nations General Assembly also recognized in Resolution 195 that the South Korean government was a legitimate government in the Korean peninsula.8  On December 12, 1948, the General Assembly adopted the United Nations Resolution 195 on Korea:  [T]here has been established a lawful government (the Government of the Republic of Korea), having effective control and jurisdiction over that part of Korea where the (UN) Temporary Commission was able to observe and consult and in which the great majority of the people of all Korea reside; that this Government is based on elections which were a valid expression of the free will of the electorate of that part of Korea and which were observed by the Temporary Commission; and that this is the only such Government in Korea.9   The resolution also recommended “occupying powers should withdraw their occupation forces from Korea as early as practicable.”10   On June 25, 1950, North Korea crossed the 38th parallel and invaded South Korea. Figure 1 shows a procession of refugees (p’inanmin 避難民) fleeing warfare during the Korean War.  The UN Security Council, by a vote of 7-1, announced a resolution on the 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  4 C. Kenneth Quinones, “South Korea’s Approaches to North Korea,” in Kyung-Ae Park and Dalchoong Kim, eds., Korean Security Dynamics in Transition (New York: Palgrave Macmillan, 2001) at 21. 5 “Modern Korean History Portal,” supra note 3. 6 Ibid. 7 “U.S. Policy Toward New Korean Government,” Department of State Press Release 647, August, 1948, reprinted in George McCune, Korea Today (Cambridge: Harvard University Press, 1950) 302-304, cited in C. Kenneth Quinones, supra note 4 at 21. 8 “Modern Korean History Portal,” supra note 3. 9 The Problem of the Independence of Korea, GA Res. 195(III), UN GA, 187th Plen. Mtg (1948) 25, online: UN General Assembly <http://www.un.org/documents/ga/res/3/ares3.htm>. 10 Ibid. at 26. 3 same day, and determined that “the action, [‘the armed attack on Republic of North Korea by forces from North Korea’], constitutes a breach of peace.”11  The Security Council urged the North Korean government to withdraw the armed forces to 38th parallel and cease the hostiles.12  On June 27, 1950, the Security Council stated in resolution 83 that South Korea faced a situation where military actions were necessary to resume international peace and security, and recommended that the UN member states furnish assistance to repel the armed attack by North Korea.13  Finally, resolution 84 recommended:  all Members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance available to a united command under the United States of America.14   The Korean War was the first time that the Security Council authorized member states to send their troops outside their territories under the United Nations flag.15  Three resolutions were adopted in accordance to article 1(1) of the Charter.16  Eric Yong-Joong Lee suggests that by resolution 84 the UN’s military intervention was possible “indirectly” through the recommendations of the Security Council.17  The legal issue was whether the UN’s military intervention in the Korean War was legitimate and necessary to maintain 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  11 82 SC Res., 473rd Mtg, UN Doc. S/1501 (1950) 4, online: WorldLII <http://www.worldlii.org/int/other/UNSCRsn/1950>. 12 Ibid.  13 83 SC Res., 474rd Mtg, UN Doc. S/1511 (1950) 5. 14 84 SC Res., 476rd Mtg, UN Doc. S/1588 (1950) 6. 15 Eric Yong-Joong Lee, Legal Issues of Inter-Korean Economic Cooperation under the Armistice System (Leiden, NLD: Brill Academic Publishers, 2002) at 20; On July 5, 1950, in the resolution 84 the Security Council “authorizes the united command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating.” 84 SC Res., 476rd Mtg, UN Doc. S/1588 (1950) 5. 16 Article 1 of the Charter states that the purposes of the United Nation is “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Charter of the United Nation, 26 June 1945, Can. T.S. 1945 No. 7.  17 Supra note 15 at 20.  4 international peace and security under articles 1 and 51 of the Charter.18  The Soviet Union, which regarded the Korean War as a civil war, criticized the military assistance as illegitimate intervention in domestic jurisdiction that violated article 2(7) of the Charter.19  Also, the Soviet Union asserted that the three resolutions on the Korean War were “null and void” in a violation of article 27(3) of the Charter on the basis of the absence of a representative of the USSR as a permanent member in voting at meetings.20  The Korean War ended on July 27, 1953 when a US-led United Nation’s coalition, North Korea, and the People’s Republic of China signed the Korean War Armistice without a peace treaty.21  South Korea was not a party to the Armistice.  The demarcation line was established near the original 38th parallel, with the Korean Demilitarized Zone as a buffer zone along the 38th parallel. 22  According to article 1(1) of the 1953 Korean War Armistice:  [a] military demarcation line shall be fixed and both sides shall withdraw two (2) kilometers from this line so as to establish a demilitarized zone between the opposing forces.  A demilitarized zone shall be established as a buffer zone to prevent the occurrence of incidents which might lead to a resumption of hostilities.23  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  18 Supra note 15 at 20; Article 51 of the Charter is as follows: “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Charter of the United Nation, 26 June 1945, Can. T.S. 1945 No. 7.  19 Article 2(7) of the Charter lays out that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.” 20 Article 27(3) requires “an affirmative vote of nine members including concurring votes of the permanent members” to make decisions of the Security Council; Eric Yong-Joong Lee, supra note 15 at 21-22.  21 The preamble indicates that “(t)he undersigned, the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People's Army and the Commander of the Chinese People's Volunteers, on the other hand […].”  James E. Hoare, Appendex A Korean Armistice Agreement 27 July 1953, Historical Dictionary of Democratic People’s Republic of Korea (Plymouth, UK: The Scarecrow Press, Inc, 2012) at 411. 22 Ibid.    23 Ibid. at 411. 5  The armistice consists of a Military Demarcation Line and Demilitarized Zone (article I), Concrete Arrangements for Cease-Fire and Armistice (article II), Arrangement Relating to Prisoners of War (article III), Recommendations to the Governments Concerned on Both Sides (article IV), and Miscellaneous provisions (article V).  The Preamble of the 1953 Korean War Armistice, which ended the Korean War, states that the armistice was made “with the objective of establishing an armistice which will insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved […].”24  The 1953 Korean War Armistice was not a peace treaty; it enabled a temporary pause in the fighting.25    Figure 2 Panmunjeom (Joint Security Area between North and South Korea) (© 2006 Luke Hutchison, by permission) 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  24 Ibid.  25 Seongho Je, 정전협정체제에 관한 연구: 기능 정상화 및 실효성 확보 방안 [A Study on the Korean Armistice Regime] (Seoul: Korea Research Institute for Strategy, 2002). 6 Panmunjeom in Figure 2 is the Joint Security Area on the DMZ where the 1953 Korean Armistice Agreement was signed, and has been under the control of the United Nations Command while it is located in Paju, Gyeonggi province.26  The geopolitical confrontation between capitalist and socialist blocs has played a critical role in the division of the Korean peninsula.  Nak-Chung Paik suggests reading the division as a “text […] against the larger background text of the world-system.”27  But the reality cannot be simply reduced into a situation between “two ‘normal’ states”28 because of the specific ways in which North and South Korea engage in the world system.29  The two Koreas are not simply two distinct constituents of the world-system30 nor “a self-enclosed system.”31  Paik argues that the division system is “a subunit of the world system, a local manifestation of the latter’s operation at a particular conjunction of its history.”32  Paik explores the division system as an analytical and conceptual tool to understand the reality of the divided Korea in question.33  Since the Armistice of 1953, the DMZ along the 38th parallel has formed a division system.  The DMZ has manifested the physical demarcation of the country, and shaped the people’s experience on the landscape of the divided country.  The landscape takes part in structuring people’s lives, and produces symbolic meanings of power and politics.34  Paik suggests that the DMZ “signifies a social 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  26 International Cultural Service Club, “Introduction to JSA,” Welcome to 판문점 DMZ, online: <http://tourdmz.com/english/03jsa/p1.php>. 27 Nak-Chung Paik, “Preface to the English-Language Edition,” The Division System in Crisis: Essays on Contemporary Korea (Berkley and Los Angeles: University of California Press, 2011) at xvii. 28 Ibid. at xvii. 29 Nak-Chung Paik, “Making the Movement for Overcoming the Division System a Daily Practice,” The Division System in Crisis: Essays on Contemporary Korea (Berkley and Los Angeles: University of California Press, 2011) at 7. 30 Supra note 27 at xvii. 31 Ibid. at xvii. 32 Ibid. at xvii. 33 Ibid. at xvi. 34 Martin Jones, Rhys Jones and Michael Woods, An Introduction to Political Geography: Space, Place and Politics (London and New York: Routledge: Taylor & Francis Group, 2004) at 116.  7 reality that to a considerable extent has taken root, for better or worse, in the everyday lives of the people living under that system.”35  The division system is “an unstable structure,” persistently rooted in the daily lives of people, that constructs meanings in the Korean peninsula.36  Bruce Cumings calls Nak-Chung Paik the first scholar to picture the “symbiotic relationship” between North and South Korea which perpetuates the division rather than leading to unification.37  Cumings also perceives a division system as “two divided states within one nation, two highly organized but separate systems engaged every day in maintaining the status quo and enhancing their own status.”38  Beyond ideological geopolitics, the division system self-reproduces itself with complex layers of power, which generate opposition to harden the division in the Korean peninsula.39     The DMZ remains in place.  Norman J.G. Pounds, a political geographer, classifies it as “a superimposed boundary,” 40 which he defines as a border that was drawn through a settled area but that disregards the existing cultural and ethnic features of the area.41  The 38th parallel is often perceived as a boundary imposed by external force without regard for ethnicity, family, kinship, and language so that it reminds people of a collective trauma as a crucial part of national history and identity.  This reflects Anssi Passi’s phrase that borders are “pools of emotions, fears and memories.”42  State laws and practices around the DMZ reveal that the Korean peninsula as a nation/state has remained incomplete, unstable, and contradictory since the partition of the Korean peninsula.  The existence of the DMZ is 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  35 Supra note 29 at 5. 36 Ibid. at 3; ibid. at 17.  37 Ibid. 38 Bruce Cumings, “Forward to the English-Language Edition” in Paik Nak-Chung, ibid, at vii. 39 Supra note 29 at 5-7. 40 Norman J.G. Pounds, Political Geography (Toronto: McGraw-Hill Book Company, Inc., 1963) at 63.  41 Ibid. at 63.  42 Corey Johnson, Reece Jones, Anssi Paasi, Louise Amoore, Alison Mountz, Mark Salter, and Chris Rumford, “Interventions on Rethinking ‘the Border’ in Border Studies” (2000) 30 Political Geography 61 at 62.  8 embedded in the Constitution and other related laws.  The border, which divided Korea into two, recurs in an on-going national history and appears everywhere in daily life in the Korean peninsula.    1.2.  Law and Borders in the Korean Peninsula and Beyond   Borders are set up to define the places that are safe and unsafe, to distinguish us from them. A border is a dividing line, a narrow strip along a steep edge.  A borderland is a vague and undetermined place created by the emotional residue of an unnatural boundary.  It is in a constant state of transition.43  Margaret E. Montoya (1998), “Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities”   Margaret E. Montoya describes a border as “a boundary in the sense of being an edge, a limit, or a defining line,” although a border and a boundary do not always have the same meaning.44  Gloria Anzaldúa also suggests that “[b]orders are set up to define the places that are safe and unsafe, to distinguish us from them.  A border is a dividing line, a narrow strip along a steep edge.”45  Borders do not simply form a physical and neutral divide but also produce historical, political, social, legal and psychic space where power relations between those inside and those outside the borders are engaged in asymmetrical ways.  They encompass “borders of and within identities, borders of power relations, and borders within 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  43 Margaret E. Montoya, “Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities” in Austin Sarat, Marianne Constable, David Engel, Valerie Hans, and Susan Lawrence, eds., Crossing Boundaries: Traditions and Transformations in Law and Society Research (Evanston: Northwestern University Press, 1998) at 132.  44 Ibid at 132. 45 Gloria Anzaldúa, “Preface,” Borderlands, La Frontera: The New Mestiza (San Francisco: Aunt Lute Books, 1987) at 3.  9 and outside the nation-state.”46  Law interacts with borders in constructing categorical identities, such as residents, citizens, refugees and stateless people.  For example, laws governing exit and entry, immigration and refugee status, nationality, military service, and national security, regulate migrations in direct and indirect ways, and contribute to producing identities, though not always in consistent ways.    This dissertation analyzes the ways in which internal, national, and international borders are embedded, constructed, and reinforced in the legal frameworks, enforcement patterns, and discursive practices on the Korean peninsula and beyond.  The study covers an inter-nation/state border  (the DMZ between North and South Korea); intra-state borders between capital cities (Pyongyang and Seoul) and the provinces; and inter-state borders between North Korea and other countries.  Through a series of focused case studies on particular border sites, this dissertation reveals the ways in which law, as material reality, ideology, metaphor, and technology, enables and disables the movement of persons, things, and symbols across borders.  The case studies begin with those borders constructed within and between two Koreas and then move outward to those that limit the movement of people beyond the Korean peninsula.   The first case study analyzes North Korea’s efforts to regulate internal migrations through systems of residence registration, labor allocation, and travel certificates as part of its centrally planned economy.  It then turns to the attempt to relocate a capital city in South Korea and the ways in which laws and practices, including written and customary constitutions, act as gatekeepers in Pyongyang and Seoul.  The following chapter analyses the gendered construction of the “Socialist Big Family” in North Korea, paying particular attention to the manner in which borders are constructed to contain 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  46 Marita Sturken, “Preface” in Mary L. Dudziak & Leti Volpp, ed., Legal Borderlands: Law and the Construction of American Borders (Baltimore: The Johns Hopkins University Press, 2006) at vii. 10 the female body.  The dissertation then moves to an analysis of the law making it a criminal offence in North Korea to cross the national border, and draws on the legal response to the practices of East German border guards in using firearms to prevent the movement of people across the Berlin Wall.  Further, in an attempt to understand the refugee border, the dissertation examines asylum cases on illegal exit from other countries in the U.S. to consider the possibility for North Korean asylum seekers.  It also assesses the work of Canada’s Immigration and Refugee Board in determining North Korean refugee claims from 1990 to 2011.  In the final case study, I apply a gendered analysis of the definition of refugee in international law to the restrictions on the right to leave North Korea.  I argue that legal relations between and within borders are mutually exclusive as well as interconnected, and daily border-crossings challenge the existing legal structure for transnational justice on the Korean peninsula and beyond.     1.3. Law, Border, and Society: Performance of the Border  The performance of the border is evidence of discursive practices of power, which operate to demarcate, separate, and divide.  “Borders are everywhere.”  Anssi Passi describes this notion as referring to “discursive/emotional landscape of social power” and “technical landscpes of control and surveillance.”47  For Passi, the discursive landscape of borders is frequently associated with national practices, through national flags and anniversaries, for nation-building.48  The capital city as a miniature of the nation-state reinforces national practices, and the DMZ acts as a historical monument, which recalls national memories that 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  47 Supra note 42 at 63 48 Ibid. 11 the two Koreas emerged from one nation.  A border is performative beyond time and space.  A border is triggered from the past to the present, and from the inside to the frontier, or vice versa.  The discursive and institutional power of the border is embedded in the everyday lives.  The DMZ daily performs with discursive practices related to security, and demarcates and separates the association of identities as ‘us’ and ‘them’ in the Korean peninsula.  The division reveals incomplete, contradictory, and “untidy”49 experience.  Mark Salter illustrates that when we cross the border, we present “an always-incomplete story of identity and our passage” to the state authority.50  Border is a text and a context.  Border expresses itself through narratives: ‘border narratives.’  Sharon Pickering explains that how the “border is narrated” refers to “how we can understand everyday deployments of ideologies of state and migration,” and “how we routinely inscribe borders with the meaning that serve to reinforce particular border imaginations, especially the practices of border policing.”51  Law is one of the narratives through which a border expresses itself.  This plays a critical role in constructing the relationship between borders and identities.  The dissertation analyzes the association between borders and identity through legal narratives.  Metaphoric boundaries fall into the scope of the dissertation.  They are not simply located at frontiers but also placed in the symbolic and political spectrum to preserve dichotomous relations between the insider and the outer, within and without, and above and below. 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  49 Mary Douglas, Purity and Danger: an Analysis of Concepts of Pollution and Taboo (London: Routledge & K. Paul, 1966) at 4.  50 Supra note 42 at 66.  51 Sharon Pickering, “Border Narratives: From Talking Security to Performing Borderlands,” in Sharon Pickering and Leanne Weber, eds., Borders, Mobility and Techonologies of Control (Netherlands: Springer Link, 2006) at 45.  12 A border as a space also engages in power relations.  A border interacts with society, and forms the boundaries of the space, which is socially and politically constructed.  Chapter Three draws in a scholarly literature to argue that law, space, and society are interrelated.  It is problematic to ignore “spatiality of social life and the politicized nature of space.”52  Space is political and ideological.  It is a product literally filled with ideologies.  Henri Lefebvre suggests that space is not separable from ideology and politic.  He states that “[s]pace is not a scientific object removed from ideology or politics; it has always been political and strategic.”53  Critical geographers have challenged the idea that space is an immutable and fixed place.  Space has been shaped and molded from historical and natural element, but this has been a political process. Border crossing, (re)locating and transferring destabilize and challenge existing power relations.  Chapter Three deals with the relocation of the Capital in the Constitutional Court in South Korea.  It finds the boundaries of capital cities, Pyongyang and Seoul, in the pre-modern and modern hierarchy between the nation’s capital and the hinterland in legal narratives, and analyzes the constitutionalization of the location of capital cities at the intersection between national identity and space.  National history and custom is an instrument in legal narratives which produce and reproduce internal boundary of the Capital as a symbol of nation.  The Kyŏngguk Taejŏn, the first legal code that was enacted in 1484 plays a significant role in the legal reasoning before the constitutional court in the contemporary society.  The chapter suggests that the spatial relationship between identity and a capital city shapes norms in the past, present and future.   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  52 Nicholas Blomley, “Introduction,” Law, Space and the Geographies of Power (New York: Guilford Press, 1994) at 4.  53 Henri Lefebvre, “Reflections on the Politics on Space” (1976) 8:2 Antipode at 43. 13 Chapter Four discusses the mythic boundaries between the private and public, and the inside and outside.  The chapter travels a gate and a frontier where women’s bodies are bipolarized as pure or impure by the pollution ritual during the Chosŏn dynasty.  It explores the principle between the inner and outer which was designed to avoid contact between men and women, and how the bipolarity is performed in the form of violence to pregnancy at the frontiers of North Korea.  The spatial boundaries, which interplay with gender norms, are expanded to sovereignty’s border practices.   Borders are self-evidently articulated by the sovereign’s control and surveillance over “populations, territories, political economy, and belonging, and culture.”54  Mark Salter argues that the sovereign performs itself through “policies, actions and customs,” and it is the “‘stylized repetition of acts’ of sovereignty” borrowing Judith Butler’s notion that gender is “an identity instituted through a stylized repetition.”55  State control and surveillance are stretched to the frontier where the use of extra-legal forces is justified as an exception as well as the inside of the nation-state such as the Capital.  Further, the dissertation reveals that the sovereign’s patriarchal gaze governs the performance of the border.  It disciplines detained bodies at frontier, and leaves marks on the bodies through extra-legal torture.  The frontier is the triangle of the sovereignty-discipline-government nexus and a crucial apparatus of security.56   Passi argues that the idea, ‘borders are everywhere,’ includes the border as a technique of surveillance and control.  Laws, border guards, and gatekeepers reinforce the border and boundary by policing movements.  This is not limited to national boundaries, but 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  54 Supra note 42. 55 Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 41:4 Theater Journal 519 at 519, cited in ibid. at 66.  56 Michel Foucault, “Governmentality” in Graham Burchell & Colin Gordon & Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991) at 102. 14 includes internal borders as introduced in Chapter Two.  Restricting the movement of persons and things within, into or out of a place reinforces the exclusion and inclusion of the space.  The next section further discusses the relationship between borders and law as a technology.   1.4. Borders and Law as a Technology   Law is a bordering technology.  “Law defines national borders; it delineates the consequences for the peoples within them.”57  This dissertation explores the relationship between law as a technology and borders.  It considers internal borders as well as national borders, both of which are drawn by the technology of law and regulations.58  In modern society, population is the object of government and technologies are developed to police, manage and secure the population in the art of the government.59  A visa or a passport is the modern product to screen immigrants at the port of entry.60  Since World War I, these government regulations have been implemented, while in the nineteenth century they were applied only occasionally in the United States and Europe.61  From the beginning of the twentieth century, territories were “firmly and fully” divided up between states along the borderlines, and people began to carry passports and visas to travel.62    	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  57 Mary L. Dudziak and Leti Volpp, “Introduction,” supra note 46 at 1.  58 Ibid at 1.  59 Michel Foucault, “‘On Governmentality’” (Autumn 1979) 6 Ideology and Consciousness, at 5-21 [translated by R. Braidotti], cited in Michael R. Dutton, Policing and Punishment in China: From Patriarchy to ‘the People’ (Cambridge: Cambridge University Press, 1992) at 17, n. 33. 60 Bente Puntervold Bo, “The Use of Visa Requirement as Regulatory Instrument for the Restriction of Migration” in Anita Böcke, Kees Goenedijk, Ketty Havinga, and Paul Minderhoud, eds., Regulation of Migration: International Experiences (Amsterdam: Het Spinhuis Publishers, 1998) at 193. 61 Paul Minderhoud, “Regulation of Migration: Introduction,” ibid. at 8. 62 A. Dummett and A. Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law  (London: Weisenfeld and Nicolson, 1990), cited in Catherine Dauvergne, “Sovereignty, Migration and the Rule of Law in Global Times” (2004) 67:4 Modern Law Review 588.  15 “[T]he technologization of borders” has increased to operate the border enforcement and management.63  US President George W. Bush signed a bill to build 1,800 watchtowers with high-tech sensors along the 5,000 miles of US border with Mexico and Canada.64  The current US-Mexico border is 3,200 kilometers (2,000 miles).65  Each watchtower will have cameras, which could zoom in on suspicious movements and send live video to border agents with computers.66  Bodily movement will be screened during the day and night.  The technologies have been developed to capture movement with regulations.  Border fences are symbols of a fear of unstoppable migration that threatens national securities of sovereign states.     Figure 3 The Chinese-Korean Border Fence along Yalu River in Dandong in China (© 2006 Jeongyoung Lee, by permission)67 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  63 Louise Amoore, “Lines of Sight: On the Visualization of Unknown Future” 2009 13:1 Citizenship Studies, cited in Supra note 42 at 61. 64 Francis Harris, “US To Build 1,800 Towers To Guard Border,” Telegraph (September 21, 2006), online: Telegraph Media Group <http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/09/21/wtowers21.xml>. 65 Olga R. Rodriguez, “National Guard Troops Scare Would-Be Migrants Away From Border,” The Associated Press (June 12, 2006), online: The Seatltle Times Companay <http://community.seattletimes.nwsource.com/archive/?date=20060613&slug=migrants13>. 66 Supra note 64. 67 Jeongyoung Lee & Sangsu Lee, “중국, 북경 국경에 철조망 설치,” the Hankyoreh (October 16, 2006), online: Hankyoreh group <http://www.hani.co.kr/arti/politics/defense/164704.html#>. 16  It is reported that China has set up barbed wire entanglements (with 2.5m of height and 20km of length) on the Chinese border side to prevent from having massive exodus from North Korea with a plan to establish a refugee camp in Dandung, a border city facing North Korea (Figure 3).68  In Figure 3, North Korean soldiers seen through the barbered wire are standing guard in Uiju-gun, Pyeonganbuk-do in North Korea, and Chinese soldiers have built the wire fence along narrow and shallow river in Dondong.  In Chapter Five, I review the East German Border Guard case, and compare the use of the firearm for border enforcement in North Korea to the East German case in terms of domestic laws and institutional practices such as the instructions for border guards.  Legislation such as the Border Act in East Germany was designed to increase border control and surveillance.69  For example, it lays out in the Border Act that the firearms could be used to prevent flights in serious cases.  The socialist states had limited travel abroad, while the Western European States weigh more the individual’s freedom to travel.70  It is the criminal law that applies to North Korean citizens without a travel permit, but the immigration law is triggered once they enter another country.  Criminal law requires due process, but ‘illegal’ migrants are not entitled to the due process.  Law functions as one of the technologies, which draw borders and boundaries.  The dissertation encounters ‘socialist’ internal borders, which are formulated in the North Korean context.  Chapter Two reflects that internal borders are associated with the socialist scheme, 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  68 Jinhi Lee, “중국, 단중에 탈북자 난민수용소 설치 계획” [China, Plan to establish North Korean Refugee Camp in Dandung] Radio Free Asia (October 18, 2006), online: RFA < http://www.rfa.org/korean/in_focus/beijing_plan_refugee_district-20061018.html>. 69 The Act on the GDR State Frontier (GrenzG) of 25 March 1982 came into force on May 1 1982. German Federal Constitutional Court, Karlsruhe: Order of the Second Senate of 24 October 1996 – 2 BvR 1851/94. 70 Decisions of the Federal Court of Justice (Bundesgerichtshof): Bundesgerichtshof, Fifth Criminal Senate, Judgment of 3 November 1992, case no. 5 StR 370/92, BGHSt 39, 1, at 10, online: IUSCOMP The Comparative Law Society <http:www.iuscomp.org/gla/judgments/bgh/s921103.htm>. 17 and law acts as a means of the internal passport system under the centrally planned economy in North Korea.  The system of residence registration is a technique of governmentality to police internal borders and put population migration under state surveillance.  As shown in Figure 4, North Korean guards keep watch and control access at checkpoints.  The signpost in the left photo refers to a checkpoint between two districts, Geumcheon-gun and Pyeongsan-gun in North Korea.     Figure 4 Checkpoints on the Road in North Korea (September 7, 2006) (© 2006 Luke Hutchison, by permission)  Law is a technology not only to govern immigration but also to regulate emigration.  It is required for citizens to have a state permit such as travel certificates and passports to leave the country in North Korea.  Law criminalizes those who cross a border without state permits.  The dissertation explores law as a mapping technique through the relationships between internal migration and administrative laws and between emigration and criminal law, and the intersection between international refugee law and international human rights law.    18 1.5. Law as Culture and Metaphor  Lawrence Rosen suggests in Law as Culture: An Invitation that “to consider law, one cannot fail to see it as part of culture.”71  After describing law in the cultural sphere,72 he explains that “even where specialization is intense, law does not exist in isolation.  To understand how a culture is put together and operates, therefore, one cannot fail to consider law.”73  Sally Engle Merry also asserts “[l]aw is embedded in social structure and culture and cannot be understood in isolation.”74  Further, Naomi Mezey puts an emphasis on “law as culture” to elaborate that “law and culture are mutually constituted, and legal and cultural meanings are produced precisely at the intersection of the two domains, which are themselves only fictionally distinct.”75  Law and culture are not separated.  This dissertation positions law and practice as a cultural site where social relations are embedded, and the web of symbols and meanings in law are played out producing legal and cultural meanings with latent contradictions and inconsistencies.  It employs the role of metaphor in law to read and interpret discursive and institutional border practices within or without legal boundaries.  Metaphors are the critical mechanism by which one may hold together and unite diverse domains into “a manageable whole.”76  Rosen calls this role of metaphor as “a unifying agent.”77  Invoking the work of 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  71 Lawrence Rosen, Law as Culture: An Invitation (New Jersey: Princeton University Press, 2006) at 5.  72 Ibid. at 4.  73 Ibid. at 5.  74 Sally Engle Merry, “Anthropology and the Study of Alternative Dispute Resolution” (1984: June) 34:2 Journal of Legal Education 277, 278. 75 Naomi Mezey, “Law as Culture” (2001) 13 Yale J.L. & Human. 35, 57; Naomi states that law is “both constituting and being constituted by social relations and cultural practices (46-47).” Naomi Mezey, “Out of the Ordinary: Law, Power, and Culture and the Commonplace” (2001) 26 Law & Soc. Inquiry 145, cited in Naomi Mezey, “Law as Culture” (2001) 13 Yale J.L. & Human. 35, 46-47. 76 Law is one of the domains. Metaphors “connect what we think we know with what we are trying to grasp, and thus unite, under each potent symbol, those diverse domains that must seem to cohere if life is to be rendered comprehensible.” Lawrence Rosen, supra note 71 at 9.  77 Ibid. at 10 19 Clifford Geertz who proposes envisaging “law as a species of social imagination,”78  Rosen argues that law as imagination offers to comprehend the world, and present “a window into the large culture.”79  The metaphor of family serves as “a unifying agent” to interpret the law and practices in North Korea.  This dissertation focuses on the role of the ‘socialist big family’ metaphor that is inscribed in law, and explores the relationship between the metaphor and border practices at frontiers.  Naomi Mezey states that “law’s power is discursive and productive as well as coercive.  Law participates in production of meanings within the shared semiotic system of a culture, but it is also a product of that culture and the practices that reproduce it.”80  In North Korea, law takes part in producing meanings of a ‘socialist big family’ as a metaphor of the nation/state, and the metaphor is reproduced in border practices with discursive, productive and coercive power of law.  Family law is the site at an intersection between the private and public.  The dissertation suggests that the metaphor of a ‘socialist big family’ is a critical mechanism of political power which employs gender in a way of policing boundaries of nation/state beyond the dichotomy between the private and public.81   In addition, Chapter Three engages in the fictional image of Pyongyang as a revolutionary and sacred place, and in the historical invention of Seoul as a capital city.        	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  78 Clifford Geertz, Local Knowledge: Further Essays in Interpretative Anthropology (United States of America: Basic Books, 1983) at 232. 79 Supra note 77 at 12. 80 Supra note 75 at 47. 81 Gender relations in a family have been employed as an engine for the rapid industrial development in East Asian countries.  20 1.6. From Transnational Law to Transnational Justice    Transnational Law  Philip Jessup used the term transnational law in a series of lectures at Yale Law School in 1956.  Jessup claims that transnational law “includes all law which regulates actions or events that transcend national frontiers.  Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.”82  Transnational law covers interactions between individuals, corporations, and other types of groups as players, which reflects that states are not only players in international law.83  As an example, Jessup considers a transnational situation in which a stateless person or a private citizen whose passport or travel document is in dispute at frontiers.84  He views that both domestic and international law would be part of transnational law as far as it has transcending effects.85  Based on Jessup’s definition, David Szablowski describes that while international law does not pierce national boundaries in a classical foundation,86 transnational law is “legal regimes which operate across national border or which regulate actions and events that transcend national borders.”87   Transnational law often represents “law’s extension beyond the boundaries of nation-states.”88  Roger Cortterrell explains that it is frequently described as:  extensions of jurisdiction across nation-state boundaries so that people, corporation, public or private agencies, and organizations are addressed or 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  82 Philip C. Jessup, Transnational Law 1 (New Haven, CT: Yale University Press, 1956) at 2 83 Jessup, Ibid at 3.  84 Ibid. 85 Roger Cotterrell, “What is Transnational Law?” (2012) 37:2 Law & Soc. Inquiry 500 at 501. 86 David Szablowski, “Introduction,” Transnational Law and Local Struggles: Mining, Communities and the World Bank (Oxford ; Portland, Or. : Hart, 2007) at 5. 87 Ibid. at 4. 88 Supra note 85 at 500.   21 directly affected by regulation originating outside the territorial jurisdiction of the nation-state in which they are situated, or interpreted or validated by authorities external to it.89     It refers to the expanded jurisdiction beyond nation-state territories where the regulations emanated from outside the nation-state have influences.  For some scholars, transnational law is disparate legal relations or a separate regime (or a legal field) from national and international law so that regulations are not fully taken in nation-state laws or international law.90  In other approaches it aims to be a universal or uniform ‘world law’ across territorial borders or be pluralist to the extent that different laws and multiple legal systems are recognized.91  From a methodological perspective, Peer Zumbansen proposes the term “transnational legal pluralism” as a replacement of transnational law beyond Jessup’s idea rather than framing it in a distinctive legal field.92  Transnational legal pluralism focuses on “actors, norms and processes as the building blocks of a methodology of transnational law.”93  Zumbansen argues that transnational law is intrinsically interdisciplinary because it questions:  the nature of legal regulation of problems, which have long been extending beyond the confines of jurisdiction – both ‘inside’ and ‘outside’ of the nation state – and which have always been at the heart of the socio-legal orientation of the legal pluralist inquiry into the myriad context, forms and dynamics of norm creation.94   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  89 Ibid. at 501.  90 Ibid.  91 Ibid. at 501. 92 Peer Zumbansen, “Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism” (2012) 21:2 Transnational Law & Contemporary Problems 305 at 311. 93 Ibid. at 308. 94 Richard Ford, “Law’s Territory (A History of Jurisdiction)” (1999) 97 Michigan Law Review 843, cited in Peer Zumbansen, “Transnational Legal Pluralism” (2010) 6:1 Comparative Research in Law & Political Economy at 55; Craig M. Scott, “‘Transnational Law’ as Proto-Concept: Three Concepts” (2009) 10 Gernam Law Journal 859 at 875, cited in Peer Zumbansen, “Transnational Legal Pluralism” (2010) 6:1 Comparative Research in Law & Political Economy at 56. 22   Zumbansen analyzes transnational law as “a methodological project” through which we recognize that law and non-law as well as the national and the global are not divisible.95  It is necessary to invite the issues of the legal pluralism that have been inquired by the law and society scholarship.  Legal pluralism addresses the “interactions and hierarchies among distinctive legal fields” in complicated situations, for example the relationship between law and custom.96  Transnational law engages in the relationships between the private and public, between law and non-laws, and between law and the state or society.97  It asks about “what is considered to be law.”98  Diverse sources of law are contested for the recognition in the boundaries between “hard and soft law, official and unofficial law, public and private norms.”99  This dissertation understands that transnational law embraces domestic law and international law that transcend local and global borders, and the boundaries between law and non-law and the private and public, and so on, so long as they influence, regulate or interrupt people, things, or symbols that are not no longer confined to the nation-states.  It reveals the tension embedded in dichotomies between the internal and international, law and non-laws, and the private and public.  With a focus on crossing borders and boundaries, the dissertation addresses the issues of inseparability between internal and international, the public and private, the state and market, and the economic and politics in terms of governance and surveillance in the cases of North Korea, and touches upon the competition and 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  95 Zumbansen, ibid. at 45.  96 Sally Engle Merry, “New Legal Realism and Ethnography of Transnational Law” (2006) 31:4 Law & Social Inquiry 975 at 976. 97 Peer Zumbansen, “Transnational Law, Evolving” (2011) 7:7 Osgoode CLPE Research Paper at 4-6. 98 Ibid. at 3.  99 Supra note 92 at 308.  23 accommodation between law and non-laws (e.g. customary law) in the case of capital cities, and between different laws and legal systems in transitional justice.  It inquires into the temporal, spatial and conceptual constructions of the boundaries between home and street, capital city and the rest, inside and frontier, and home and host country, and examines the interplay between law and practices and the dichotomies.  My study on law and borders is situated in the scope of transnational law “as a way of questioning and re-constructing the project of law between places and spaces.”100   In a response to transnationalism, Sally Engle Merry argues that new methodologies in new legal realism101 are called upon, which conducts “transnational and multi-sited ethnography research that tracks the flows of people, ideas, laws, and institutions across national boundaries and examines particular nodes and sites within the field of transnational circulation.”102  George E. Marcus introduces “tracking strategies” in the multi-sited spaces for ethnographic research by following the people, the thing, the metaphor, “the plot, story or allegory,” “the life or biography,” and the conflict.103   Although my research is not based on ethnography, I conducted transnational multi-sited research that tracks the borders and boundaries of people, laws, customs, ideologies, symbols, and bodies.  The sites that I visited are the DMZ, checkpoints, capital cities, the Berlin Wall, detention centers, and a port of entry.  By following legality and illegality of departure and arrival as different nodes, the dissertation interprets, examines, and analyzes emigration and immigration of North Koreans within the realm of criminal law, immigration law, and international law.  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  100 Legal realism examines how law is practiced in daily life. Supra note 96 at 975.   101 Ibid. at 976. 102 Ibid. at 976. 103 George E. Marcus, “Ethnography in/of the World System: The Emergence of Multi-Sited Ethnography” (1995) 24 Annual Review of Anthropology, at 95-117.  24  Zumbansen explains that the notion of transnational law is potentially relevant to international human rights law, comparative constitutional law, commercial law, and administrative law at the global level, and so on.104  Transnational law fills up the distinctions between different regulatory regimes and encompasses border-crossing interactions of law and regulations.  It addresses the points of contact in between criminal law and emigration, and refugee law and immigration, and administrative law and internal migration, and the intersection between international human rights law and international refugee law.  Transnational law is at the point, which internal and international migrations intersect.  For example, hukou is a “local citizenship” that sets up internal borders.105  This household registration permit gives the status of permanent resident and guarantees minimum welfare benefits, medical treatment, and education.106  The localized practices together with nationality law in China create stateless children born to a Chinese or Korean Chinese father and an undocumented Korean mother.  This reveals how an internal border practice helps to construct a transnational law.  I uses a term a transnational legal border to emphasize a border or boundary by which the subject is legally situated and bounded in transnational context.  North Korean migrants have faced transnational legal borders including international law, domestic law (including criminal law and immigration and refugee law), and localized legal practices such as hukou in China.  I suggest that transnational law is constructed at the intersections between national laws, between national and international law, and between laws and practices, and extend to cover interactions between agents