Gusts Of Popular Feeling: October 2016

Tuesday, October 25, 2016

Anti English Spectrum distributes pamphlets in Seoul taking advantage of the SBS broadcast

Part 59: Video On Demand service for "I Want to Know That" temporarily suspended
Part 60: TV Program Warms Up Foreign Teacher Controversy

Part 61: A country where foreign English instructors play
Part 62: "Let's not use foreign actors": Controversy spreads over SBS's 'I Want to Know That' report

Part 63: Anti English Spectrum distributes pamphlets in Seoul taking advantage of the SBS broadcast, part 1

On February 20, the day after the SBS broadcast, Anti English Spectrum founder 'Bballyuchi (calpis)' posted the following message at the Anti English Spectrum cafe:

We got leaflets printed in Chungmuro and from the Danseongsa Building at Jongno 3-ga to the Seun Sangga [we distributed them] around the jewelry shopping area and to street vendors and passers by...
In the Jonggak area we distributed them even to the information desks of leading English hagwons...
We moved to Myeong-dong and carried out the campaign on the streets of Myeong-dong.

Who knows, there may even be a member here who joined after receiving one of the leaflets.
We didn't take many photos.
We made 4,000 leaflets and distributed around 1,500 or 1,600.

Well done, everyone - thank you members.

The post also includes photos of three different members handing out leaflets, with the top one taken at the Jongno 3-ga intersection; the one in the beige parka in the top photo would likely be AES founder Ballyuchi, pictured here in an MBC interview three weeks earlier.

The sashes are obscured but from other photos it seems they say "Expel illegal foreign English instructors" on one side and "Protect our children" on the other.

Though they were posted in the opposite order in the Anti English Spectrum site the next day (where Bbaallyuchi commented on the spacing and spelling errors due to the speed of making the leaflets), it's clear from the photos above which side of the leaflets are facing up. Both sides feature the then-current Anti English Spectrum website banner at the top:

(Click here to see full sized image.)

I've put in italics below the sections of the leaflet printed in red.

The fact is that at this moment someone you love is being exposed to low-quality native-speaking instructors...

-------------------

Right now in this society many people are becoming victims of low-quality native-speaking instructors.
The definition of a low-quality native-speaking instructor: Those coming to Korea without E-2 visas for the purpose of engaging in sexual pleasures and to create trouble.
E-2 visas: A visa issued by the immigration office to those who have a four-year university degree or teaching credentials.

Let us alert you to cases of victimization by these low-quality native-speaking instructors!

1. A native-speaking instructor who got a student pregnant
He dated a student in another class for simple enjoyment and with no responsibility evaded her, and in the end the informant wanted to stop other victims [from suffering], but he threatened the informant saying he would charge them!
**A case of victimization at Anti English Spectrum.**

2. The horrors of [becoming] sex objects
Boasts of having sex with 20 Korean women...
**Written by poster himself at the native-speaker job site English Spectrum, which is now closed down.**
Also seduced students' mothers.

3. Providing marijuana to students
Dated a high school girl and gave marijuana to student(s).
**Broadcast on SBS's 'I Want to Know That' February 19, 2005.**

4. Sexual assault
Sexually assaulted a middle school girl and started working as an instructor at another hagwon.
**Broadcast on SBS's 'I Want to Know That' February 19, 2005.**

-------------

Ladies and gentlemen!

Right now our society has no system properly put in place to filter out low-quality native-speaking instructors!
Ladies and gentlemen, you yourselves must be vigilant and expel them!!!
If you see these people please report them to the immigration office or the nearest police station.

Would you like to confirm whether the above cases of victimization are true?
On the reverse side are the contents of the broadcast!

The reverse side of the leaflet reads as follows:

(Click here to see full sized image.)

How to pick up young Korean girls: The real story

At the end of last year photos of white people frolicking with Korean women at a bar in Itaewon were uploaded at an employment site for foreign language English instructors, causing controversy when netizens criticized this and put forward the view that [the photos] invaded privacy. At the same time many people were shocked by a post titled 'How to seduce young Korean girls' about seducing minors.
Amid this criticism the cafe closed down, finishing things, but rumors wondering whether it was true never stopped. However, at some English hagwons things like this are happening!

What was disclosed on the broadcast:

This is what was broadcast:

Is this a lawless zone? Foreign instructors who buy marijuana and look for young students.
Sexually assaulting a middle school girl and giving marijuana to students...

Is Korea an ATM? Foreign instructors! How do you think about Korea?
They earn money in Korea and take trips to Thailand...

Think about the racial discrimination within ourselves.
We look coldly upon migrant workers from Southeast Asia but are excessively lenient towards blue-eyed foreigners...

Ladies and Gentlemen, please confirm all of these things directly!!!
Watch the February 19, 2005 broadcast of SBS's "I Want to Know That" once more.

--------------------

Finally, ladies and gentlemen, let us tell you about ourselves, who made known these facts.
We are Anti English Spectrum, we have 10,000 members and we are a movement to expel unqualified native speaking English instructors.

If you would like to learn more facts and cases of victimization, please visit Anti English Spectrum at Naver. Thank you!

http://cafe.naver.com/englishspectrum.cafe

This leaflet was made from genuinely-given donations made by cafe members.

This leaflet gives both a snapshot of how Anti English Spectrum members were thinking about the foreign teacher 'problem' at the time and a glimpse at their future actions. Fear-mongering was a constant throughout the time the group was active, and it's obvious here with the opening sentence of the leaflet, which warns that "at this moment someone you love is being exposed to low-quality native-speaking instructors." The use of 'exposed' would recur a year-and-a-half later in the BreakNews article connecting foreign teachers to AIDS, when it was asserted that Korean "women [who had sex with foreign teachers] are being defenselessly exposed to AIDS." Mind you, that formulation of "defenseless" exposure in regard to AIDS has a longer pedigree, going back to the 1988 Olympics.

Related to the descriptions of being defenseless are the assertions that Koreans were being victimized by foreign teachers (or foreigners in general), a common theme in nationalist historiography. "Right now in this society many people are becoming victims of low-quality native-speaking instructors." "Let us alert you to cases of victimization by these low-quality native-speaking instructors!" "Would you like to confirm whether the above cases of victimization are true? On the reverse side are the contents of the broadcast!"

That last sentence reveals that Anti English Spectrum's modus operandi - of getting tips online (or possibly through their telephone hotline), feeding them to the media, and then using the media reports they contributed to as evidence in propaganda materials or petitions to the government - was already established at this point (the stalking in order to obtain proof would come later, it seems). As it's put on the leaflet, "Ladies and Gentlemen, please confirm all of these things directly!!! Watch the February 19, 2005 broadcast of SBS's "I Want to Know That" once more." As their list of achievements describes it, they "Participated in shooting reports on English teachers" for the current affairs program MBC 2580 (and in fact appeared in it) at the end of January and "Fully participated and joined in on the coverage of SBS’s 'I Want To Know That,' 'Blond and Blue-eyed English Teachers.'"

Not only did appearances on the TV shows (and other forms of publicity like the leaflets) attempt to increase the audience for their views, they also highlighted the existence of the group and attempted to recruit new members. As Anti English Spectrum's leader wrote in the post above at the site, "Who knows, there may even be a member here who joined after receiving one of the leaflets." As the leaflet reads:

Finally, ladies and gentlemen, let us tell you about ourselves, who made known these facts. We are Anti English Spectrum, we have 10,000 members and we are a movement to expel unqualified native speaking English instructors.

If you would like to learn more facts and cases of victimization, please visit Anti English Spectrum at Naver. Thank you!

In comparison to illegal foreign instructors ("Is Korea an ATM? Foreign instructors! How do you think about Korea?"), members of the site are "genuine" and presumably good-hearted people; hence the "genuinely-given donations" which made the leaflets possible.

There's more to say about this pamphlet and what it said about Anti English Spectrum's future direction; I'll save that for the next and final post of this series.

Friday, October 07, 2016

NHRCK recommends Korean government stop mandatory HIV testing of foreign English teachers

As the Korea Herald reported, the National Human Rights Commission of Korea "has recommended the government stop its mandatory HIV testing of foreign English teachers."

The NHRCK decision refers to the compulsory medical testing of teachers on E-2 visas, which includes drug and HIV testing. A petition was originally brought to the NHRCK in July 2009 by an assistant teacher at an elementary school. The school had refused to renew her contract after she did not submit to the test.

The commission initially dismissed the case, citing it as an individual complaint, even though thousands of teachers took the test each year and 50 teachers had already filed a similar report.

But in dismissing the complaint, the commission allowed the case to be taken to the UN Committee on the Elimination of Racial Discrimination, which told Korea last year to apologize to the teacher and pay compensation, as well as remove visa requirements for HIV testing.

Now, the NHRCK has backed the CERD decision, telling the Ministry of Justice to amend or rescind its rules on medical testing. [...]

The decision is dated Sept. 8, but Ben Wagner, who represented the petitioner in both the CERD and NHRCK cases, said he was only notified Thursday. There is no notification of the decision on the commission’s website.

Wagner welcomed the decision, which he said had exceeded his expectations.
"This decision has been too long coming, the NHRCK delayed for nearly 8 years and that has to change. But I can say without hesitation that the decision is a very good one indeed,” he said.

"The NHRCK has taken a very strong position on protecting the rights of foreigners. But even further than that, the NHRCK has been very direct in insisting that the government ‘walks the talk’ when it comes to the international law standards that it professes to uphold and abide by but doesn’t always live up to. "

The NHRCK added that "it expected the Ministry of Justice to respond within 90 days of the report," while the Herald noted that the Ministry of Justice had as of yet made no comment.

The CERD decision was announced in May of last year; I posted about it here and here. As is noted in the decision below, the NHRCK, 7 years after the original petition in 2009, decided to act following government inaction after the CERD decision:

The Korean government (through the Ministry of Foreign Affairs, which is a competent ministry for CERD) responded that it would include contents regarding CERD opinions in the combined 17th, 18th, and 19th State Report. However, the report did not contain appropriate measures to address mandatory medical checkup required from E-2 visa holders, which was the subject matter of an individual communication. Against this backdrop, the NHRCK has come to review the policy of mandatory medical testing for foreign E-2 visa holders and the measures to facilitate effective implementation of the individual communications system.

It also mentions the E-2 Visa was first introduced in April 1993; I didn't have an exact date before.

Here is the full decision:

National Human Rights Commission of Korea

Standing Committee

Decision

Title

Recommendation for revising the medical examination requirement for foreign E-2 visa holders and preparing domestic procedures for individual communications under U.N. human rights treaties

Recommendation

In an effort to resolve racial discrimination issues regarding the mandatory medical check for foreign E-2 teaching visa holders and facilitate effective domestic implementation of the opinions regarding individual communications under U.N. human rights treaties, the National Human Rights Commission of Korea (“NHRCK”) hereby makes recommendations as below:

1. The Prime Minister should take legislative and administrative measures to effectively carry out recommendations adopted by U.N. treaty bodies in response to individual communications.

2. The Minister of Foreign Affairs should produce measures to address the opinion adopted by the Committee on the Elimination of Racial Discrimination (“CERD”) at its eighty-sixth session, including adequate remedy for the petitioner in Communication No.51/2012.

3. The Minister of Justice should amend the Ministry of Justice’s Announcement No. 2011-23 to address its racial discriminatory nature or rescind it for the purpose of improving the medical test requirement for foreign E-2 teaching visa holders.

4. The Minister of Education should revise relevant regulations and practices that require foreign E-2 teaching visa holders to submit a health medical report including HIV test results and supervise Metropolitan and Provincial Offices of Education so as to discontinue requiring them to repeat such medical tests only to have their contract renewed, in particular, after having registered as alien residents and worked as native-speaker foreign language instructors.

Reasons

Ⅰ. Background of Recommendations

An Office of Education has refused to renew a contract with a petitioner, foreign E-2 teaching visa holder (“E-2 holder”) who had worked as an assistant native-speaker teacher in a local elementary school, for not filing a health and medical report which includes an HIV test. The complainant launched a complaint with the NHRCK in July 2009, and also requested the Korean Commercial Arbitration Board to initiate mediation, followed by the submission of an individual communication to the CERD against the Republic of Korea (“Korea”) in December 2012.

In May 2015, the CERD at its eighty-sixth session responded to the individual communication by concluding that a mandatory testing policy limited to foreign language teachers who are not ethnic Koreans does not appear to be justified on public health grounds or any other ground, and is a breach of the right to work without distinction as to race, color, or national or ethnic origin, in violation of the State party’s obligation to guarantee equality in respect of the right to work as enshrined in Article 5 (e) (i) of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee, thus, recommended that the Korean government take the appropriate measures to review regulations and policies enacted at the State or local level relating to the employment of foreigners, and that it abolish, both in law and in practice, any piece of legislation, regulation, policy or measure that has the effect of creating or perpetuating racial discrimination.

The Korean government (through the Ministry of Foreign Affairs, which is a competent ministry for CERD) responded that it would include contents regarding CERD opinions in the combined 17th, 18th, and 19th State Report. However, the report did not contain appropriate measures to address mandatory medical checkup required from E-2 visa holders, which was the subject matter of an individual communication. Against this backdrop, the NHRCK has come to review the policy of mandatory medical testing for foreign E-2 visa holders and the measures to facilitate effective implementation of the individual communications system.

Ⅱ. References for Consideration

The NHRCK refers to Articles 6 and 11 of the Constitution of the Republic of Korea, Article 2 (3) of the National Human Rights Commission Act, Attachment 5-2 related to Article 76 (2) of the Enforcement Rules of the Immigration Control Act, Articles 8-2 and 27 of the Prevention of Acquired Immunodeficiency Syndrome Act, Article 26 of the International Covenant on Civil and Political Rights ("Covenant"), Articles 2, 5, 6, and 14 of the International Convention on the Elimination of All Forms of Racial Discrimination ("Convention").

General Comment No. 30, the opinion made at the 86th session of the CERD in accordance with Article 14 of the Convention, and Articles 26 and 27 of the Vienna Convention on the Law of Treaties ("Vienna Convention") have also been taken into consideration.

Ⅲ. Issues and Improvement Regarding Medical Tests for Foreign E-2 Visa Holders

1. Grounds for submission and current status of medical health records for foreign E-2 visa holders

Over the last five years, more than 30,000 non-citizens have entered Korea with E-2 teaching visas, and are required to register as alien residents within 90 days after their arrival. E-2 visa holders are entitled to work as assistant foreign language instructors along with Korean teachers for the programs like EPIK, English Program In Korea, in primary and secondary schools or other institutes and organizations such as academic institutes and research centers, and are not allowed to engage in other activities for profit.

The E-2 teaching visa was first introduced in April 1993. In December 2007, however, the Korean government decided to require E-2 holders to submit criminal background and medical check documents upon their registration as alien residents, because unqualified teachers and the usage of illegal drugs by E-2 visa holders had set off social problems. In April 2009, the Ministry of Justice amended Article 76 (2) Attachment 5-2 of the Enforcement Rules of the Immigration Control Act to set forth that E-2 visa holders shall submit physical examination records, including TBPE test (narcotic drugs test) issued by a national/public hospital, public health center, or general hospital, except for those who are recruited and hired by the Ministry of Education and Science Technology or local Offices of Education as foreign language instructors in primary and secondary schools. In January 2011, the Ministry of Justice instituted its Announcement No. 2011-23, adding that the medical record shall be issued by hospitals designated by the Minister of Justice and include an HIV test. Attachment 5-2 related to Article 76 (2) of the Enforcement Rules of the Immigration Control Act was revised accordingly in March 2011 so that medical record shall be issued by hospitals designated by the Minister of Justice. According to the ‘2016 EPIK Manual for Native-speaker English Assistant Teachers’ (guidelines for the employment of native-speaker foreign language instructors of Metropolitan and Provincial Offices of Education) released by the National Institute for International Education in March 2016, the medical examination shall be issued by medical facilities designated by the Minister of Justice, and there is an exemption for native-speaker English teachers hired by Metropolitan and Provincial Offices of Education. However, the ‘Manual for Hiring Native Speaking English Assistant Teachers’ issued by some Offices of Education in August 2016 reads that native-speaker assistant English teachers shall undergo a medical examination at a designated hospital upon contract renewal and submit the result to the Office in person, which might lead to the cancellation of a contract renewal, if health issues are detected. This effectively leaves E-2 visa holders no choice but to submit the report. The termination clause of a standard contract sampled by some relevant manuals explicitly stipulates that employees shall undergo a medical examination including illegal drug and HIV/AIDS tests in Korea in order to work in public education facilities.

Looking at such practices in relation to the employment of native-speaker foreign language instructors of Metropolitan and Provincial Offices of Education, the Announcement does not mention the proviso for those who are recruited and hired by the Ministry of Education or local Offices of Education prescribed by Attachment 5-2, Article 76 (2) of the Enforcement Rules; however, it seems to have applied to them as well. Nor does "Visa & Sojourn Guide Manuals for Foreign Nationals" released by the Ministry of Justice in August 2016 consider the proviso, leaving the collection and evaluation of the medical examination report at the competent Office of Education's discretion.

Foreign instructors hired by private academic institutes or research centers other than Offices of Education are obliged to submit a medical examination record which tests for HIV and the list of narcotic drugs laid out in Announcement No. 2011-23 of the Ministry of Justice under Article 13-2 of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons and Article 10-2 of its Enforcement Decree.

All the combined rules and regulations effectively force foreign E-2 visa holders to submit the medical checkup result including HIV and illegal drug testing to public offices or employers unless they want to lose the job opportunity for which their entry was granted.

2. Contentious racial discrimination issue with the medical examination for foreign E-2 visa holders

Under the current system, those who are eligible for English assistant teachers are not only foreign E-2 visa holders but also ethnic Koreans holding F-4 visa who have obtained the nationality of an English speaking country. However, ethnic Koreans with F-4 visas are subject to neither alien registration nor medical examination including HIV test when filing for residence under the Act on the Immigration and Legal Status of Overseas Koreans.

Based on the documents submitted by the petitioner, the eighty-sixth session of the CERD observed that foreign teachers of English who are ethnically Korean, and Korean teachers, are exempted from such testing, and that the testing is therefore not decided on the basis of a distinction between citizens and non-citizens but rather on the basis of ethnic origin. The Committee also observed that mandatory HIV/AIDS testing for employment purposes, as well as for entry, stay and residence purposes, is considered to be in contradiction of international standards, as such measures appear to be ineffective for public health purposes, discriminatory, and harmful to the enjoyment of fundamental rights.

In addition, it notes that during the Korean Commercial Arbitration Board’s arbitration proceedings which the petitioner requested, some officials from Office of Education confirmed that tests for HIV/AIDS and illegal drugs use were viewed as a means of checking the values and morality of foreign teachers of English. In this context, the Committee recalled its General Comment No. 30, in which it recommends that States parties take resolute action to address the situation.

In response, the 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. The practice, thus, is considered to constitute racial discrimination in violation of Article 11 [Equality] of the Constitution and Article 26 of the Covenant under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

3. Appropriateness of mandatory HIV test requirement for the employment of foreign E-2 visa holders

The early spread of HIV/AIDS led countries to adopt controlling public health policies such as real-name based management and compulsory testing. These measures, however, were criticized for invading the privacy of the infected and stigmatizing and negatively stereotyping them, which, in turn, discouraged people from getting a test or counselling and pushed them out of public health system. The ‘1988 ILO/WHO Joint Declaration on HIV/AIDS in the Workplace’ says that an employee does not have an obligation to voluntarily inform an employer about her HIV/AIDS status and the affected do not usually pose any infection risk to their colleagues. Article 8-2 of the Prevention of Acquired Immunodeficiency Syndrome Act mandates that no employer is allowed to request a worker to submit a written report generated from a medical examination for HIV/AIDS while Article 27 states that an employer who urges an employee to notify the results of a medical examination or request the submission of a written report of a medical examination shall be punished by imprisonment for not more than one year or by a fine not exceeding three million won.

Despite all the international standards and regulations, foreign E-2 visa holders are still required to submit their medical examination record including HIV testing upon employment. However, as noted by the Centers for Disease Control & Prevention, HIV is unlikely to be transmitted in a daily life. Considering its transmission route is mostly via sexual contact, the submission of HIV testing results can lead to stigmatizing a group of people with a certain medical condition. Such stigmatization imputes the cause of infection to the group and misleads the general public to think that they are safe from the disease as long as it is limited to a small group of people. This kind of misperception hardly finds its place in any desired public health policies.

Thus, foreign E-2 visa holders’ mandatory submission of medical examination including HIV testing upon employment is not appropriate in the light of the intent of the Prevention of Acquired Immunodeficiency Syndrome Act and may constitute a “discriminatory act violating equal rights” regarding employment on the ground of medical history, and therefore should be changed so as to improve current practice.

4. Summary

As described above, the mandatory HIV testing policy limited to foreign E-2 visa holders upon their registration as alien residents may constitute racial discrimination. Thus, Ministry of Justice’s Announcement No. 2011-23 which stipulates the said policy shall be rescinded or amended to address its racial discriminatory nature.

In addition, it is necessary that the Ministry of Education revise relevant regulations and practice regarding the employment of foreign E-2 teaching visa holders and supervise Metropolitan and Provincial Offices of Education so as to rectify such practices, because requiring mandatory submission of medical report from those who have registered as alien residents and worked as native-speaker foreign language instructors at schools, academic institutes, and research centers is more excessive control than the said Ministry of Justice’s Announcement and other relevant regulations.

Ⅳ. Effective Domestic Implementation of Recommendations regarding Individual Communications under U.N. Human Rights Treaties

1. Obligation under U.N. human rights treaties

Article 6 (1) of the 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.”

Therefore, Korea, as a State party to the duly signed and ratified U.N. human rights treaties, has a responsibility to submit a periodic State report to each committee and to carry out its recommendations in accordance with conclusion regarding individual communications if the country accepts an individual communications procedure or signs an optional protocol that allows for individual communications. In addition, the final views of the United Nations Human Rights Committee regarding the fourth periodic report of the Republic of Korea in November 2015 also offer the recommendation to establish a mechanism and procedure to provide effective remedies for any violation of the Covenant.

2. Implementation of recommendations regarding individual communications

Recommendations by each committee regarding individual communications under U.N. human rights treaties are considered international standard. Progress of status on the recommendations made by each State party is continuously monitored by each committee as the ultimate goal is to ensure that the state party accepts them and provides victims with remedies.

Overseas examples about how to implement the recommendations regarding individual communications include the case Alyne da Silva Pimentel v. Brazil of the Committee on the Elimination of Discrimination against Women (“CEDAW”) in its Communication No. 17/2008. In response to this case, the country has reportedly delivered effective judicial remedies, a comprehensive plan for women’s health considering gender and racial perspectives, and policies to reduce preventable maternal deaths.

On the other hand, if a state party refuses to follow recommendations, it has been urged to do so with the individual communications reviewed alongside its periodic report by a committee. In Communication No. 4/2004, A.S. v. Hungary, the CEDAW recommended that Hungary improve its health care system and compensate a member of the Roma community, for a forced sterilization procedure conducted without her knowledge. To ensure the recommendation’s implementation, the Committee has made efforts to communicate with Hungary, and monitored a periodic report submitted by the country for years. As a result, the women received compensation.

3. Recommendation of the 86th CERD session and its effective implementation

Concluding Communication No. 51/2012, L.G. v. Korea, the eighty-sixth session of CERD decided that Korea is in violation of Article 5 (e) (i) of the International Convention on the Elimination of All Forms of Racial Discrimination and recommended that the Korean government grant the petitioner adequate compensation for moral and material damages, including compensation for lost wages.

Being a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, Korea should compensate the petitioner for the moral and material damages caused by the discriminatory practice, following the recommendation by the CERD in accordance with the Constitution and the Vienna Convention on the Law of Treaties. However, the lack of domestic procedures to secure the implementation of individual communications makes it harder for victims to effectively seek proper remedies even though human rights violations or discriminatory practices are uncovered through individual communications based on U.N. human rights treaties.

Hence, it is necessary for the Korean government to take legislative and administrative measures so as to ensure the effective implementation of recommendations resulting from individual communications under U.N. human rights treaties. In particular, as the Office of the High Commissioner for Human Rights is reviewing the measures to ensure the development of consistent standards for protection, consistency of jurisprudence among treaty bodies, reinforcement of the justiciability of all human rights, and acceleration of the implementation of decisions and views of treaty bodies by State parties, the Korean government can no longer delay the preparation of procedures to implement the recommendations.

4. Summary

As a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Republic of Korea should actively implement CERD recommendations stemming from the individual communication system.

In particular, appropriate compensation for damages suffered by the petitioner should also be considered regardless of any preceding improvements in policies related to rights violations, as the individual communications system allows persons to individually challenge infringement of their rights. The Ministry of Foreign Affairs, therefore, as competent ministry, must establish measures to implement the recommendations by the eighty-sixth session of the CERD to offer the petitioner proper remedies for her mental and material damages.

Currently, Korea is a State party to the individual communications system under four U.N. human rights treaties, namely the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of All Forms of Racial Discrimination. As different ministries are in charge of domestic implementation of each of these treaties, cooperation among the relevant ministries is critical. Hence, it would be appropriate for the Prime Minister to take steps to establish a domestic institution to ensure the implementation of recommendations adopted by U.N. treaty bodies in response to individual communications.

Ⅴ. Conclusion

For such reasons, the NHRCK decides to offer its recommendation in accordance with Article 25 (1) of the National Human Rights Commission Act.

September 8, 2016

Chairperson Sung-ho Lee

Commissioner Young-hye Kim

Commissioner Kyoung-sook Lee

Commissioner Sang-hwan Jeong

Pages

Tuesday, October 25, 2016

Anti English Spectrum distributes pamphlets in Seoul taking advantage of the SBS broadcast

Friday, October 07, 2016

NHRCK recommends Korean government stop mandatory HIV testing of foreign English teachers