Thursday, August 02, 2018

UN Human Rights Committee rules against E-2 HIV and drug testing

Benjamin Wagner reports that the UN Human Rights Committee has decided that, in trying to force a foreign university teacher on an E-2 visa to submit to HIV tests, South Korea has violated article 17 (right to privacy) and article 26 (nondiscrimination) of the International Covenant on Civil and Political Rights.

This case at the UN Human Rights Committee goes back five years, but in fact it reaches back further to events in 2009 that led Andrea Vandom, who refused to take an HIV test when teaching English at a university in Korea, to bring her case before the Constitutional Court, which ultimately rejected her petition in 2011 (but did not rule whether the testing was constitutional or not). More on that Court's decision and the background going back to 2009 can be found here.

This is a separate case from the CERD case, more about which can be found here.

Additionally, the "UN Human Rights Committee has found ROK’s current mandatory drug testing policy for foreign teachers in S. Korea is a violation of international law." The Committee's report is available here. Below are pertinent paragraphs from the report:
10. In accordance with article 2(3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide the author with adequate compensation. Additionally, the State party is under the obligation to take steps to avoid similar violations in the future, including reviewing its legislation to ensure that it is in compliance with the Covenant, and that mandatory and other coercive forms of HIV/AIDS and drug testing is abolished, and if already abolished, not reintroduced.  
11. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and disseminate them broadly in the official language of the State party.
While this is good news, we'll have to see what happens. It took two years for the government to react to the CERD ruling, and that was only after the National Human Rights Commission recommended the government stop its mandatory HIV testing of foreign English teachers.


Pacific Rim Economist (PacRimEco) said...

Do you think current and former E-2 visa holders should be compensated by the Korean government because of the violation of there right to privacy?

Ben said...

Great question Cameron, I think it depends if teachers gave full informed consent. I know in the past there were several outspoken teachers who insisted they had. Where there is less than that I’d say it gets problematic.