Note: This was cross-posted to my own blog.
Seven years after it dismissed initial complaints against the South Korean Ministry of Justice’s (MOJ) policy of mandatory HIV and drug tests for foreign English teachers, the National Human Rights Commission of Korea (NHRCK) has (finally!) recommended that the MOJ remove the testing requirement. NHRCK’s recommendation follows the decision of the UN’s Committee on the Elimination of Racial Discrimination (CERD) in May 2015, which stated that the MOJ’s policy requiring a health check which includes HIV and drug tests for native-speaking English teachers (those on the E-2 visa) constitutes racial discrimination.
The complaint which led to the ruling, filed by a teacher from New Zealand against the Ulsan Metropolitan Office of Education, was initially submitted to the NHRCK in 2009 when the testing policy was first implemented. Unfortunately, the commission dismissed it, along with 50 others protesting the policy, and cancelled its initial plans for a public hearing on the grounds that they were not willing to hear cases on individual complaints. (You can read more about the NHRCK’s decision and the events leading up to it in a paper (PDF) by Ben Wagner, the human rights attorney who filed the case on the New Zealand teacher’s behalf.) In dismissing the complaints, however, the commission allowed the case to be taken to the CERD, where it was accepted in 2012.
Now the commission has formally backed the CERD’s ruling, which – despite the fact that it took seven years to get there – is a big win on the topic. HIV is a forgotten disease (PDF) in South Korea and is incredibly stigmatized, which makes it easy for government agencies like the MOJ to codify this kind of direct discrimination without any public outrage or pushback from within the country. In this sense, the challenge to this ongoing affront to human rights from an authoritative domestic institution is crucial. In particular, the commission’s decision calls out the MOJ’s policy as blatant racial discrimination, specifically citing the fact (also noted in the CERD’s decision) that the tests have no basis in the protection of public health because both Korean nationals and non-citizen ethnic Koreans are exempt from the testing requirement:
[T]he Ministry of Justice takes a stand that an independent state is bestowed with wide discretion in its immigration control and, in particular, such tests are indispensable as the instructors are supposed to protect young students and facilitate a safe environment and public health.
However, as noted by the CERD, even the vast discretion embedded in immigration control hardly renders it reasonable that while Korean teachers and ethnically Korean foreign language instructors are exempted from the testing, only foreign E-2 visa holders are under an obligation to test for HIV. Likewise, the concerns about a safe public health environment offer little ground for different treatment between ethnically Korean teachers and foreign instructors with E-2 visas.
Second, it points out that the policy has the potential to stigmatize foreigners as being high-risk for HIV and thus lead the general public to believe that they are not at risk for infection. This is important, as the country’s HIV infection rate continues to climb.
The MOJ never responded to, or changed its testing policies in response to, the UN CERD’s ruling. Hopefully the Korean government will be more responsive to a ruling from a domestic institution, but there is no way to know for sure. However, foreign English teachers now have a resource to challenge the testing if they wish. The NHRCK decision explicitly states that the UN CERD decision carries the same authority as domestic Korean law:
Article 6 (1) of the [Korean] Constitution states, “Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea,” indicating that the country has a legally binding obligation to facilitate the rights prescribed by the treaty to which it agrees by means of accession, ratification or succession. Article 26 of the Vienna Convention on the Law of Treaties stipulates, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith,” while Article 27 states, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
English teachers may be able to use the CERD decision to persuade their employers not to require the HIV test; alternatively, they have the option to file a complaint with the NHRCK (either named or anonymous) and/or the UN CERD Secretariat. The full decision has been made available by Matt von Volkenburg on Gusts of Popular Feeling.
Shameless plug: I will be presenting on this topic, including successes and ongoing advocacy initiatives, at this year’s APHA Annual Meeting in Denver.