Note: This was cross-posted to my own blog.
South Korea has come under fire in recent years for its treatment of immigrants, migrant workers, and non-ethnic Koreans (and even their own working-class people). Last fall, Bitter Harvest, Amnesty International’s report on the country’s treatment of agricultural migrant laborers highlighted how Southeast Asian migrants went unpaid, were subjected to harsh treatment and squalid living conditions, and were either deprived of medical care or forced to pay for their own care out of pocket (from their own meager wages). In some cases, the migrants were forced to take (and pay for) an HIV test, with employers requiring a negative test result.
In the case of migrant workers, this is clearly illegal – currently, the only visa category for which the South Korean government requires an HIV test is E-2 (native-speaking English teachers from the US, Canada, the UK, Ireland, South Africa, Australia, and New Zealand). However, even this requirement – first implemented in 2007 in response to a racially-fueled moral panic – has been determined to be discriminatory and racially motivated, according to a ruling from the UN’s Committee to End all forms of Racial Discrimination (CERD) handed down last week. The ruling, issued in response to a case filed by a New Zealand woman who lost her job in 2009 after refusing to take an HIV test to renew her contract – has been long awaited by the expat ESL community in Korea. Whether the Korean government will remove the requirement remains to be seen.
The case was brought to CERD by Benjamin Wagner, an international human rights attorney who co-authored a legal paper on the issue of South Korea’s use of HIV testing as a proxy for racial discrimination with Matt van Volkenburg. The paper (PDF) provides an excellent background on the history, political and cultural climate, and xenophobic advocacy efforts that led to the implementation of the testing requirement, as well as how the requirement is a clear example of South Korea shirking its international human rights obligations:
The HIV and drug test requirements for foreign teachers were first established as emergency measures in 2007 by the Ministry of Justice
(“MOJ”), which claimed they were necessary in order to “ease the anxiety of the citizens.” Part II of this Article examines the background and
context of the implementation of these requirements and argues that they were introduced during a period of media hysteria and moral panic…a civil society group called the “Citizens’ Group for Upright English Education”…succeeded in courting public opinion against foreign English teachers by contributing to highly sensationalized media reportage replete with lurid tales of perversion, sex crimes, drug use and AIDS. This group was also successfully able to influence national policy by petitioning the government for measures against foreign teachers, including mandatory HIV and drug tests.
Part III examines the ROK’s international commitments to eliminate discrimination and stigma based on actual or presumed HIV status and
examines how and why the ROK has failed to honor these commitments.
Korea’s HIV restrictions for foreign teachers are among the most extreme form of HIV restrictions in the world…Of the forty-nine countries in the world that continue to have some form of HIV-related restrictions in place for foreigners only about six have restrictions so extreme as requiring in-country testing for foreign workers that must be repeated on a regular basis, and nowhere are teachers subject to such restrictions. Indeed, the ROK’s extreme position toward its foreign teacher population has attracted the attention of UN Secretary-General Ban Ki-moon who has urged the ROK to eliminate its HIV restrictions on foreign teachers.
Obviously, any foreigner who tests positive for HIV is immediately detained and deported; in 2008, the Korean CDC reported that it had deported 521 out of 647 HIV-positive foreigners. Non-nationals of Korean ethnicity have been able to successfully challenge such deportations, but the Korean judicial system explicitly differentiates between the legal rights of citizens versus foreign nationals.
Interestingly, South Korea has given CERD “the same authority as domestic law” regarding foreign nationals; however, this means next to nothing as Wagner explained in a different piece last week:
Professor Kyong-Whan Ahn…remarked that the constitutional analysis used by Korean courts to determine whether an incidence of discrimination has occurred is relatively underdeveloped. The method relied upon by courts is the “reasonableness test”. But, Ahn complains, decisions are all too often “a foregone conclusion” with little analysis or scrutiny.
[T]he status of the CERD is unique in that “it has the same authority of domestic law and does not necessitate additional legislation,” as the Republic of Korea has made clear to the Committee on several occasions. Nevertheless, the Committee has responded, “although the Convention forms part of the domestic law and is directly applicable in the courts of [South Korea], there are no court decisions which contain references to or confirm the direct applicability of its provisions.” The Committee has pointed out to the government that the situation may be the result of “a lack of awareness of the availability of legal remedies” and has recommended “information campaigns and education programmes on the Convention and its provisions.” Unfortunately, however, the treaty remains relatively unknown in Korea and neither the government nor the courts have done enough to change that.
van Volkenburg, who has been covering this issue (and its origins) since it all began in 2005 at the long-running Korean expat blog Gusts of Popular Feeling, has a great summary of the ruling and its implications (as well as the best collection of links to the news coverage of the ruling):
The summary makes public the justification the UMOE offered for the tests – something that many people taking these tests have known for years, but never admitted by the government:
[D]uring arbitration proceedings, L.G.’s employers, the Ulsan Metropolitan Office of Education (UMOE), said that HIV/AIDS tests were viewed as a means to check the values and morality of foreign English teachers.
One of the Committee’s recommendations isn’t very surprising:
The Committee recommends that the State party grant the petitioner adequate compensation for the moral and material damages caused by the above-mentioned violations of the Convention, including compensation for the lost wages during the one year she was prevented from working.
It continues with much more sweeping recommendations, however:
It also recommends that the State Party takes the appropriate means to review regulations and policies enacted at the State or local level related to employment of foreigners and abolish, both in law and practice, any piece of legislation, regulation, policy or measure which has the effect of creating or perpetuating racial discrimination. The Committee recommends the State party to counter any manifestations of xenophobia, through stereotyping or stigmatizing, of foreigners by public officials, the media and the public at large, including, as appropriate, public campaigns, official statements and codes of conduct for politicians and the media. The State party is also requested to give wide publicity to the Committee’s Opinion, including among prosecutors and judicial bodies, and to translate it into the official language of the State party.
This doesn’t just refer to English teachers, but to regulations for all foreign workers. And as I’ve covered here, the references to the conduct of the media and politicians is very pertinent, considering the ‘Citizens Group for Upright English Education’ (also known as Anti English Spectrum) worked closely with the media and had access to politicians when pushing for the creation of the HIV testing policy (among others) in the first place.
It will be interesting to see how the Korean government will respond to the CERD’s ruling – whether it will in fact change the law in accordance with its treaty obligations. Based on South Korea’s history of human rights protections, it does not look promising. Even when human rights principles are codified into law, employers (and often police officers) who violate workers’ legal rights do so with widespread impunity and are rarely prosecuted or held accountable – as demonstrated by the cases of the migrant workers in Bitter Harvest and the workers enslaved on salt farms on the islands of Jeollanam-do. The admission that HIV tests were seen as a way to “check the values and morality” of visa applicants is a slap in the face – doubly so considering that only foreigners are required to have “upright values” in order to get jobs.
Nonetheless, the CERD ruling is a major victory – a solid foundation on which to pressure the South Korean government, which has demonstrated that it wants to be taken seriously in the international community.