Saturday, July 21, 2012

Mandatory HIV Testing Policy Challenged at the International Level - Korea charged with violating racial discrimination treaty

Some good news, for a change:
The Office of the U.N. High Commissioner for Human Rights has accepted a claim against South Korea filed by a New Zealand woman who was employed as an English teacher in the country. VOA Correspondent Steve Herman in Seoul reports the case challenges mandatory HIV testing for many foreigners working in South Korea.
Do listen to that short report. Now, this will all require a bit of explanation. This Ohmynews article (in English) from 2009 explains some of the background of Lisa's story. When she refused to take an HIV test to renew her contract at a public school in Ulsan in 2009, she filed a complaint with the National Human Rights Commission of Korea, which ultimately rejected her complaint. She also put in a request to the Korean Commercial Arbitration Board (KCAB) for non-adversarial mediation with her school which they refused. The case then went into arbitration where after two years the arbitration board ruled against her as well. With such 'domestic remedies' exhausted, there was another option: The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which is a United Nations convention.

The ROK has been a party to the ICERD since 1978 and has declared that the treaty "has the same authority of domestic law and does not necessitate additional legislation."

The "Committee on the Elimination of Racial Discrimination (CERD) [which] is the body of independent experts that monitors implementation of the Convention [...] by its State parties", has noted that "although the Convention forms part of the domestic law and is directly applicable in the courts of the State party, there are no court decisions which contain references to or confirm the direct applicability of its provisions." The CERD has said the situation may be the result of "a lack of awareness of the availability of legal remedies." CERD was cited in the complaint to the NHRCK and during arbitration, but it was ignored by both the NHRCK and the KCAB.

As for the available legal remedies, t
he Republic of Korea is party not only to the ICERD, but also party to the convention's optional protocol, which allows individuals to bring a case against the state itself. (Not every country is party to this protocol, as this article (which will reward close readers) by Benjamin Wagner (Lisa's attorney) points out. The optional protocol, Article 14, allows for the examination of complaints by the Committee on the Elimination of Racial Discrimination. Complaints are first ruled admissible or inadmissible, and if admissible (as Lisa's case is), they are then ruled on to see if they are in violation of the convention or not. The ROK has 4 months to respond, and Lisa then has two months to reply to their response before a judgement is made.

So, not only is Korea on the hook for using HIV testing as a "proxy for racial discrimination," but this is also the first time CERD's optional protocol has been used by an individual to bring a case against the Republic of Korea.

This should all make for some interesting developments in the days and months ahead.


Brian Leiszter said...
This comment has been removed by the author.
Anonymous said...

I don't think that they will be able to uphold a claim of racial discrimination since it's only the E-2 visa holders and not E-1s of the same race, for example, that are being discriminated against.

Anonymous said...

Personally I don't mind if a country wants to test for HIV for incoming workers. Since I buy into the SK health insurance plan it seems fair.

But the larger issue does seem pretty clear -- if SK doesn't want to come off as an international pariah they need to adapt to international standards, not bury themselves further into a xenophobic bunker.

Anonymous said...

@kkachi: In this case, I think she is going under the 'non-Koreans are facing racial discrimination' banner. As regular Koreans don't need to get tested, or get tested far less, for the same positions.

In any case, it will be interesting to see how this plays out. I could foresee South Korea overreacting, and forcing EVERYONE coming into the country to get an HIV test. We've got half a year of waiting, so don't hold your breath.

Roboseyo said...

Great news and nice report.

Jimmy Bolton said...

Personally I find it an interesting case. My wife and I (she is Korean and I'm British) worked at the same English language academy a few months back. I was asked to provide a drugs test and a HIV test (plus academic certificates)when new regulations came into force. My wife wasn't requested to provide anything. So if I had been diagnosed with HIV and fired(?), my wife could have continued to work legally. I asked my management about this this, and just got blank stares.