"Why can't Americans be Punished?"

The 1988 Seoul Olympics

Prologue 1: "Why can't Americans be Punished?"

Part 1:  The Seoul Olympics, 25 years later
Part 2:  The 1988 Olympics and Korean fears of AIDS
Part 3:  Americans and bad first impressions
Part 4:  Reptilian Style: The 'live-or-die general war' against Hollywood
Part 5:  An attack in a boxing ring
Part 6:  Media responses to the boxing ring incident
Part 7:  No more lion: US swimmers' 'prank' becomes 'diplomatic incident'
Part 8:  KAIST catches Big Ben
Part 9:  Hankyoreh interviews Korean witness to theft by swimmers
Part 10: Stop me if you've heard this one: Four GIs head to Itaewon in a taxi...
Part 11: Taxi-kicking US runner taken to Itaewon police box
Part 12: NBC uses the power of t-shirts to insult Korea... again
Part 13: Cultivating outrage toward America
Part 14: Politicians engage in damage control
Part 15: Heaven on Earth
Part 16: Hustler magazine tramples the purity of the Korean race 
Part 17: Stolen gold

[Update: I rendered the names of the teens below into English from their renderings in Hangeul, which were 매트니 잘스 and 오맬리 패트릭. The latter is easy enough, but I rendered 매트니 잘스 as 'Charles Mateny,' which may not be correct.

Original Post:]

Prologue 1: "Why can't Americans be Punished?"

Prior to the 1988 Olympics, the claiming of jurisdiction by Korean prosecutors in SOFA cases was an issue that had failed to garner much interest among the general public. In the summer of 1988, the Hankyoreh was mostly alone among newspapers in arguing that SOFA should be revised, especially in regard to reporting on rallies calling for the government to take jurisdiction over U.S. soldiers who had committed crimes in several cases outside Seoul that summer. On August 6, however, a spokesperson from the foreign ministry said the government was reviewing the possibility of revising the SOFA. Because issues related to jurisdiction of U.S. soldiers who committed crimes, the rights of Koreans working on U.S. bases, and cost sharing had come up at previous annual security consultative meetings with the U.S. government, various ministries planned to meet to discuss these and make recommendations to USFK. This issue began to gain traction with the public days before the Olympics, however, when the assault of a pregnant Korean woman by American teens from a US base took place in Seoul. In many ways, the Donga Ilbo, even more so than the Hankyoreh, was at the forefront of pushing left-nationalist causes at this time, and on September 5, 1988, twelve days before the Olympics, the Donga Ilbo published the following piece of agitprop article in a column called "Window":

"Why can’t Americans be punished?"
Pregnant woman battered by children of US Military 

September 3, around 8:30 am in Predelivery Room 1424 in the Joongang University Yongsan Hospital on Hangangro 3-ga, in Seoul’s Yongsan-gu. Jo Gyeong-ok (334 Han River 2 ga, Yongsan-gu) was laying in bed and crying as she thought of the infuriating and absurd thing she had gone through the night before.

Mrs. Jo's husband Im Sam-bin (37, tile worker) was at her bedside comforting her, holding his wife’s tear-streaked face in his hands.

At around 12:40 am Mrs. Jo went out by the street to wait for her husband, who was late coming home.

Mrs. Jo married Mr. Im, who is the only son of an only son, three years ago, and at last she was about 4 months pregnant with her first child.

About ten minutes after leaving the house, Cho was surprised when someone suddenly hit her cheek as they rode a bike past her. Mrs. Jo, who shouted "Why did you hit me?” was mistaken in thinking it was her fault. They heard Mrs. Jo's shout and came back on their bicycles.

Both of them were young-looking foreigners.

They began to beat Mrs. Jo. They jibbered on in English and punched and kicked her wildly but, unable to ask them in English why they were beating her, Mrs. Jo screamed.

Passersby reported it to a nearby police box but during the 10 minutes before the neighbourhood patrol arrived she had to suffer beating and taunting.

The two who were arrested and taken to the police box in front of Yongsan Station were found to be the children of American military personnel, Charles Mateny (18, high school student) and Patrick O'Malley (17, high school student). They never did explain why they slapped Mrs. Jo as they rode by on bicycles.

However, after the police contacted the main Yongsan Police Station and asked some questions, they were all sent home around 4 o'clock in the morning.

Mrs. Jo and her husband, Mr. Im, who had hurried to the station later, protested, but the police explained that they couldn’t help it because of the "Korea-US Status of Forces Agreement" [SOFA].

The explanation Mrs. Jo heard was that if they were to collect material from the police and notify the US military, they (the boys) would get punished there so it would be the same anyway, but she could not accept this.

"I don’t know what SOFA is, but they beat a Korean in Korea, so why can’t Korean courts punish them? And how should I get compensation for the mental shock my wife received?"

Her husband, unable to go to work that day, was saddened as he looked after his wife.

Reporter Kim Sang-young

In an article I posted here, it was reported that she would not miscarry. This is the incident - and most likely the very article - that turned issues related to SOFA from an esoteric topic few but activists and those near US bases cared about into an issue people could relate to: the victimization of an innocent Korean - a pregnant woman, at that - at the hands of Americans who seemed to get away without punishment, a trope which would be of great utility to activists in the decades to follow.

The media attention may have led the police to follow up on the assault, as the Donga Ilbo published the following report the next day:

Investigation launched into assault on pregnant woman, USFK kids summoned to police station

The Yongsan Police Department in Seoul has decided to directly investigate the case of the children of US military personnel, Charles Mateny (18, high school student) and Patrick O'Malley (17, high school student), who for no reason assaulted a pregnant Korean woman, and sent a summons to the US 8th Army ordering them to appear before the police within three days.

Police said it was judged that South Korea had jurisdiction over soldiers' family members under Article 22 (3) of the ROK-US SOFA, and decided to summon them for an investigation.

Article 22 paragraph 3 of the ROK-US SOFA states that the US 8th Army holds jurisdiction over active duty US military and US military property, and the ROK has jurisdiction over the families of soldiers, civilian attached to the military, and their families.

Meanwhile, as witnesses testified that they seemed to be high at the time of the assault, police intend to investigate whether they took drugs or not.

The next day, on September 9, 1988, the Donga Ilbo published a follow up which highlighted the impact of the first article:

Stir over US military kids' "assault on pregnant housewife"
US military kids' pregnant housewife assault incident

Our report in "Window" on September 5 is causing an unexpected stir. After the report on this incident our office received flood of telephone inquiries about the SOFA agreement by many readers wanting to recover their wounded national pride and scolding the insincerity and indifference of the police investigation.

The readers who called in above all expressed anger in complaining about the ROK-US SOFA. Experts also pointed out that the ROK-US SOFA is a much more unequal agreement than the "London" convention (concluded in 1951), the law on foreign military status on which it is modelled.

One reader, a 40-year-old housewife, argued that "this agreement, which was signed 22 years ago when we had to put up with inequality, should be correctly revised to fit current realities."

However, rather than the inequality of the agreement itself, what caused resentment among readers was the passive attitude of our nation's government, which from the beginning shrinks from and turns its back on incidents involving Americans, even if one of our citizens is the victim.

According to the ROK-US SOFA, domestic investigative agencies can investigate criminal cases even if they are the families of American military personnel or families of civilians attached to the military, and according to Article 22, which regulates criminal jurisdiction, there are various conditions, but generally jurisdiction over families of American military personnel or civilians, excluding soldiers, should be exercised by Korea. Even in the case of US soldiers, cases of serious crimes such as murder, robbery, and rape must also be brought before Korean courts.

In spite of these regulations, there are many cases when our side gives up jurisdiction while the case is in the hands of the police and the prosecution, and jurisdiction is passed on to the US military.

The fact is, in the past year, of 835 cases involving Americans the Seoul District Prosecutor's office received, 196 cases involved crimes by military family members, but the number of these cases prosecuted by our nation’s prosecutors amounted to no more than twelve.

In fact, in the case of this incident, even though as a matter of course the police should have started an investigation immediately after the incident, one gets the impression that the belated issuing of a subpoena to the young Americans who committed assault is due to the pressure of public opinion.

A 50 year-old reader said, "Although it is an unequal agreement, it is sadaejuui-type thinking for us to abandon even the right to exercise [jurisdiction] as a matter of course." Kim, a 26 year-old graduate student, said, "Acknowledging that there is a positive aspect of the role the US has played in our country since liberation, we should also re-establish our position now by asking the question "What is America to us?"

Reporter Kim Sang-young

One has to chuckle at the Reporter Kim's description of the furor following his first article as an "unexpected stir" when that was pretty clearly the hoped-for response to it. Criticism of the "sadaejuui-type thinking" in regard to Americans appeared the next day when a letter was written to the Donga Ilbo and printed with the title "The humiliation of the US Army kids’ assault on Korean pregnant women; If we can’t punish it, are we not a colony?"

It's the phrase about readers wanting "to recover their wounded national pride" that stood out for me the first time I read this article, however. How wonderful and evocative is that phrase? During the previous year or so the liberalization of the economy, particularly of beef and cigarettes (see the articles here) had angered farmers, and students and farmers' groups held protests, criticizing the government's "renunciation of sovereign rights" and distributed leaflets reading, "Those who smoke foreign-brand cigarettes are sellers of national self-respect." And when United International Pictures (UIP) began doing an end run around Korean film companies by directly distributing its films in Korea during the Olympics, one director said that UIP's dealings demonstrated "a high-handed attitude to the disregard of the Korean people," while another said "UIP's 'sneaking' infiltration is a fatal blow to our pride." The need to recover national pride vis-a-vis the US would become a theme in media coverage throughout the Olmypics, helping spread anger at the US from students and farmers to the population at large.

As reported in a September 19, 1988 Joongang Ilbo article, the United Korea Women's Association gave a statement the day after the Olympics began denouncing the attack by US military teens against the pregnant Korean woman and criticized the "special privileges" of the US military, citing a government statistic that out of 15,000 crimes committed by US soldiers in the past decade, the Korean government had exercised jurisdiction in less than one percent of the cases. As well, they called for the perpetrators' parents and the US Ambassador to publicly apologize to Korea citizens, a speedy and fair investigation and punishment by government authorities, and "revision of the unequal SOFA." They also declared that it "wasn't simply an assault, but a reflection of Americans' tendency to look down on Koreans." This tendency would be highlighted by the media throughout the Olympics, influencing a growth in anti-Americanism that would influence government policy after the Olympics, particularly in regard to the SOFA.

[For an archive of SOFA-related documents, see here.]

Fringe Christian anti-gay group opposes ending HIV tests for E-2s

In the wake of the Ministry of Justice announcing that it would no longer require HIV tests for foreign instructors, (reported in the Korean language media as being due to "controversy over discrimination"), a Christian group known as Anti-Homosexuality Christian Citizens' Solidarity has released a statement condemning the Ministry for endangering the nation and reverse discrimination. As the Korea Times put it, 

The Christian group condemns homosexuality and believes that Christians must unite against homosexuality. It supports Christian anti-homosexual movement organizations, recruits and trains "young patriotic" vanguard troops and seeks strategic countermeasures to stop homosexuality, according to its website.

That website is http://www.antihomo.net, in case you were wondering. That such an anti-gay group would be concerned with AIDS is not surprising considering the link made between homosexuality and AIDS in the literature of the Christian groups who have picketed Pride celebrations for the past few years. One might get the idea from the Times coverage that this group speaks for a large group of people, but that would be mistaken. The message from its representative Pastor Ju Yo-sep - the same Pastor Ju Yo-sep who left a ranting comment on the Yonhap piece - appears only in the Gidok Ilbo [Christian Daily], and has not been referred to in any other articles (other than the Korea Times), as far as I can tell. Here is the article he wrote for the Gidok Ilbo on July 10:

[AHCCS Statement] The Ministry of Justice must immediately retract its halting of mandatory AIDS tests for foreign conversation instructors.

Pastor Ju Yo-sep of Anti-Homosexuality Christian Citizens' Solidarity.

At present, the Justice Department has a disordered atmosphere with the appointed minister candidate having voluntarily resigned and the confirmation hearing for the new minister candidate yet to take place. In such a [state], the Ministry of Justice announced on July 8 a dangerous policy that runs counter to the protection of citizens’ health and the national interests of the Republic of Korea, that it had abolished the AIDS tests which had been mandatory up until now for native-speaking conversation instructors, in accordance with the demands of the UN Committee on the Eradication of Racial Discrimination and the recommendation of the National Human Rights Commission. The majority of citizens who hear this news are astonished. How can this crucial issue be decided by some public officials without public consent?

This is clearly a socialist idea, a serious issue that infringes upon people's right to health and right to know, and should be withdrawn and [the AIDS test should be] reverted back to because it is an erroneous decision arising from a distorted sense of discrimination that causes reverse discrimination. It is shocking and unbelievable that the Ministry of Justice, a central administrative agency that oversees prosecutors, the penal [system], human rights protection, immigration control, and other judicial affairs, has made such an anti-human rights and anti-citizen decision that infringes on the human rights of the majority in order to protect the human rights of a small minority. Why should the majority of citizens suffer from reverse discrimination at the hands of the state?

AIDS is a legally[defined] infectious disease caused by infection with HIV (Human Immunodeficiency Virus), and is classified with the third group of infectious diseases in article 2 (1) of the “Prevention and Management of Infectious Diseases Act” which includes malaria, tuberculosis, Vibrio Vulnificus Septicemia, influenza, and syphilis. However, it is doubtful whether a dangerous infected person with something like AIDS can be kept secret on that basis. This cannot but be questioned as a decision made through an obviously wrong political judgment.

As well, the anxiety and suspicion of many parents and students regarding foreign conversation teachers can be amplified. This will not only affect parents and students, but will even have an adverse effect on the majority of foreign conversation instructors who have nothing to do with AIDS. Up until now, parents and students believed the government, and when it said foreign conversation instructors had passed the AIDS test, they trusted this, but from now on, because [this] method of verifying foreign instructors is gone, it can lead to group distrust and disadvantage [among] parents and students. A democratic government should not give up the obligation it ought to fulfill, causing the distrust of the majority of the people and strained relations with foreign conversation instructors, as well as wasting energy on unnecessary suspicion.

As a result of problems with foreign conversation instructors such as drugs appearing many times in the media, public opinion worsened and so immigration enforcement measures made it so medical certificates (for syphilis*, drugs, AIDS) were to be included for the E-2 visa, but I cannot understand why the AIDS provision alone was excluded. On the same basis, if a syphilis carrier or drug addict raises an objection that they are discriminated against and request that [the test] be removed, how should that be dealt with? AIDS, like syphilis and drugs, spreads in secret easily, and is a dangerous disease that can directly affect the people, so it is necessary to explain in detail why AIDS alone is treated as a special case, and if it is unreasonable, it should naturally be withdrawn.

In some media [reports], the health rights of the Korean people were threatened, and even though there was great concern about the spread of AIDS, embarrassment was felt about the mandatory AIDS test for foreign conversation instructors, and they forecast problems with labor survival and from the purebloodism and violation of reciprocity which go against globalization, and articles agreeing with this were published, but what nation’s media is so deplorable and shocking? I would like to ask again what kind of benefits would come to the Republic of Korea if we really abolish the mandatory AIDS test for foreign instructors. It is just dumbfounding how much it was decided to ruin and corrupt Korea. At present, I don’t know if a lot of the national budget is paid to cover the cost of treatment for AIDS patients, or if it cannot be interpreted as a complaint of an idealist who deliberately looks away.

Which country officials are the officials of the Justice Department? Now, with the position of the Minister of Justice vacant and a candidate yet to go through a confirmation hearing, we should ask why the Ministry of Justice decided on such an important policy in a hurry and sternly find out who is responsible. At this time the nation’s citizens have realized just how indifferent the Ministry of Justice, along with the National Human Rights Commission, is to the protection of the health of its own citizens and how it has neglected and encouraged AIDS infection. The Ministry of Justice should see this as an opportunity to become aware of this and make the utmost effort [to rectify it].

As the treatment costs for AIDS patients are covered in full by the government, it is paid out from the astronomical national budget, but who will be responsible for the cost of medical care and nursing care if a Korean is infected through sexual contact with a foreign AIDS conversation instructor?** Why is the Ministry of Justice abandoning its duty and irresponsibly making an exemption of the mandatory test? In this way, how can the Ministry of Justice fortify and protect the citizens’ human rights, protect citizens’ right to health, and protect the safety of many students and hagwon attendees?

We hope the Ministry of Justice will come to its senses and immediately retract its abandoning of the mandatory AIDS test for foreign conversation instructors and bear in mind that this path is the only way to recover damaged public trust.

There's so much wrong here it's hard to know where to start. Suffice it to say that the idea that HIV spreads easily is wrong, and the idea that parents should be suspicious of foreign teachers because their children might catch it from the teachers helps to contribute to fear and ignorance surrounding HIV/AIDS in Korea (not to mention contributing to suspicion of foreigners; as always such articles have a prescriptive quality to them). What confuses me is that Christians who seem to take offense at North Koreans being abused by their government (ie human rights abuses) also take offense at the concept of rights being applied to their own country (rights, I should add, that Christians, among others, fought for during the democracy movement). This obviously reeks of "rights for me (or my pet causes) but not for thee," and probably has more to do with the feeling of it being imposed from without (again, see some of their writing here). Of course, such ideas have not been imposed from outside - they need only read something like "When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt." (Leviticus 19:33-34)***

In the end, I'm less concerned about this odd postscript to the doing away of the E-2 HIV testing regime in the form of the rantings of homophobic Christians as it applies to foreign teachers than I am about how such intolerance contributes to the hardship faced by Koreans living with HIV/AIDS and the Korean LGBT community.

* It's odd how syphilis got included in all of this. It was not included in the original health checks that began in 2007, but was mandated in the 2011 MoJ notice on E-2 health checks and appeared on future checks (at least the ones I took). Reading Yonhap's article or the ranting above makes it sound like it was part of the original testing regime, but it wasn't, and was added with little fanfare in 2011.

** I decided to render "foreign AIDS conversation instructor" as it was written: 외국인 에이즈회화강사. He's either not the best of writers or is deliberately writing in a smear-y way that makes the Anti-English Spectrum folks look measured in comparison (and the fact that nothing about the doing away with of the HIV tests has appeared on AES's site shows just how dead that site is).

***The Biblical quote is from Gil-Soo Han's Nouveau-riche Nationalism and Multiculturalism in Korea (New York: Routledge, 2016).

Yonhap: Controversy over discrimination prompts Korea to stop E-2 HIV tests

[Update, July 12]

Here's an article about the end of HIV testing which borrows from the article Benjamin Wagner and I wrote, though it comes up with the opposite conclusion.

The Korea Times also published the English version of the Yonhap article below.

[Original post]

The Korean language press has also reported on the end of HIV/AIDS tests for E-2 visa holders (as can be seen here). Most articles are based on the following article Yonhap published on July 8:

'Discrimination Controversy' - Foreign instructor AIDS test abolished… UN recommendation accepted

Tests for drugs like methamphetamine, cocaine, marijuana to remain the same as before

The mandatory AIDS testing system for foreign language conversation instructors working in Korea has been abolished.

Foreign conversation instructors urged the abolition of the mandatory AIDS test which they said was a discriminatory system that is not internationally recognized as universal and, after controversy, the government has accepted this demand.

The Ministry of Justice disclosed on July 8 that that from now on foreign instructors who have been issued a conversation instruction (E-2) visa can work without receiving an AIDS test.

Previously, in order to work in private institutes and elementary, middle and high schools, foreign conversation instructors were required to be issued an E-2 visa and to submit the results of AIDS and drug tests issued by a medical institution in Korea.

According to a new Ministry of Justice Notice which took effect on July 3, foreign instructors are now required to take a test for drugs including methamphetamine and cocaine and for the sexually transmitted disease syphilis, but not an AIDS test.

A New Zealander who had worked as an English instructor at a Korean elementary school in Korea petitioned the United Nations Committee on the Elimination of Racial Discrimination [CERD] in 2012 and with that the mandatory AIDS test for foreign conversation instructors became a full-fledged controversy.

In May 2015 the CERD said that demanding an AIDS test as a condition of employment for English instructors violated human rights and urged the Korean government to compensate the woman for mental and material damages.

Last September the National Human Rights Commission also recommended to the government to stop the practice of carrying out mandatory AIDS testing for native speaking conversation instructors on E-2 visas.

Yonhap also published this video:



And no, the test for employment purposes was not a little pinprick on the finger.

It's nice that Yonhap was so quick to assure readers that the drug tests will remain so that they won't worry too much. As we can see, there was nothing wrong with the tests, it's just that foreign teachers made made it into a controversy at the UN and the government responded to their demands. One can't help but smile at the assertion that the "full-fledged controversy" over the tests started in 2012 considering the fact that no Korean media outlets reported on CERD accepting the case that year (despite the fact that a PR company issued a press release). And nothing was said of the Human Rights Commission rejected the first petition, or the Commercial Arbitration Board rejecting her petition, or the fact that the ROK took the better part of a year to respond to the petition (a bit over the 90 days required). Nor does it mention the teacher in question never received any compensation. None of this is surprising, of course.

Judging by his comment on the Yonhap article, it would seem Yonhap reader "패스터주pastor JosephJoo" was not very happy with the decision:

How much do they intend to try to spoil and corrupt this country?

Although the seat of the Minister of Justice is currently vacant, how can the Ministry of Justice officials have such little consideration for the protection of the nation’s life and health and exempt foreign instructors from AIDS tests?

Just what country’s officials are the Ministry of Justice’s employees, and was this something they decided on while in their right minds?

Considering the reputation of pastors when it comes to committing sex crimes in Korea, that comment is a bit rich. Other comments also call for fingerprinting foreigners and the necessity of the HIV tests. It would seem Anti English Spectrum were quite successful and pushing the "foreign English teacher as AIDS threat" narrative, but considering its association with US soldiers, and Americans in general dating back to the 1980s, they didn't have to try that hard.

Justice Ministry announces it has ended HIV tests for English teachers

The Korea Herald reported yesterday that South Korea has done away with mandatory HIV tests for English teachers:

A controversial requirement for HIV testing of foreign language teachers has been scrapped, government officials confirmed to The Korea Herald on Thursday, almost 10 years after it was introduced.

Testing for HIV and drugs began in 2007 in response to pressure from citizens groups angered partly by a website on which teachers bragged about debauchery and the news that pedophile Christopher Paul Neil had taught in Korea.

For more (much more!) on the website and the netizen and media response it engendered, see here; for more on how the "citizens' group" Anti English Spectrum pushed to get the HIV tests in particular made into policy, see here. [I have a more thorough update to that post that I'll start posting soon.]

The Justice Ministry confirmed that a revision to visa regulations on July 3 removes the requirement for HIV testing when renewing or issuing E-2 visas. [...]

Choi Won-seok, director of human rights affairs at the Foreign Ministry, said that the change involved a number of related government bodies, including the Education Ministry, so that HIV testing would also not be required as a part of contracts with state education authorities.

He said the change was made in response to concerns raised from various sectors, including the UN and the National Human Rights Commission of Korea.

He is referring to how in May of 2015 the UN Committee on the Elimination of Racial Discrimination ruled that Korea should drop its HIV testing requirements for foreign English teachers, and in September 2016 the National Human Rights Commission of Korea "recommended the government stop its mandatory HIV testing of foreign English teachers." It took some time for the government to respond to either of these, but it appears it finally has.

If we remember, in December 2010 the Korean government officially did away with all HIV testing restrictions on foreigners - except for E-2 visa holders. About a month later the Ministry of Justice posted an Immigration Control Law enforcement regulation titled "Notice of the Requirements of Medical Institutions Administering Drug Tests and Other Tests to be Submitted for Alien Registration," which can be found here. The Ministry of Justice released an amended version of this notice on July 3 which was exactly the same as the old one but which removed "HIV" from things to be tested for (the same drug testing system remains in place). It also announced that the old notice has been abolished as of July 3. (The new notice can be found by going here and searching for "법무부고시제2017-116호"; then go to page 69 of the resulting pdf.)

Perhaps one reason for finally abolishing the HIV restrictions is that the new Foreign Minister, Kang Kyung-hwa, was formerly UN Deputy High Commissioner for Human Rights. As noted in this article, she once said, "While travel restrictions are a question of State sovereignty, it must be pointed out that States also have obligations under international law within which sovereign rights may be exercised[. ...] In particular, under basic norms of non-discrimination, States must provide compelling reasons for any differentiation in treatment, including in restricting travel for people living with HIV. We know that there are no such compelling reasons."

Another reason might be that a South Korean representative, Professor Chung Chin-sung, has just been elected to serve as the Korean expert on the Committee for the Elimination of Racial Discrimination (CERD); having to admit your own country was ignoring a CERD decision could make for awkward moments at the water cooler.

Of course, when it comes to the 2015 CERD decision, the ROK is still ignoring at least one of the Committee's recommendations:

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.

This certainly has not happened.

It should also be kept in mind that though the ROK had promised to remove HIV testing regulations in 2010, it kept the E-2 tests in place and lied to UNAIDS, which resulted in Korea being portrayed as an HIV-test-free nation in UNAIDS literature. And there have been hints that though HIV testing for migrant workers (E-9 visa-holders) had been officially lifted in 2010, these tests were still continuing. The 2017 EPIK contract for public school English teachers states that HIV tests are necessary. Granted, it has only been a few days, and the Korea Herald article stated that "the change involved a number of related government bodies, including the Education Ministry," but it would be worth keeping an eye out to make sure the contracts change. The contracts can be found here (where you can enjoy the "cleavagey white female stock model" who was photoshopped into the banner image).

Needless to say, as someone who made some contributions to the effort to get the HIV tests repealed, I'm pleased to see this finally, after almost a decade, come to pass. But it might be a good idea to make sure that they have actually been repealed in practice, and not just in a pro forma manner, before celebrating too much.

[Thanks to Ben Wagner for many of the above links - and, obviously, for putting in the effort to get us to this point.]

American Public Health Association urges UNAIDS to revoke ROK’s status as a country with no HIV-related travel restrictions

In May of 2015 the UN Committee on the Elimination of Racial Discrimination ruled that Korea should drop its HIV testing requirements for foreign English teachers, and in September 2016 the National Human Rights Commission of Korea "recommended the government stop its mandatory HIV testing of foreign English teachers." The government was to decide whether to accept this recommendation within 90 days, or by December 7, but there are no news reports stating whether this occurred or not. (Though, considering the political turmoil, perhaps that is not so surprising.)

Throughout this time, the ROK has been portrayed in UNAIDS literature as a country with no HIV restrictions. For example, this pamphlet shows "How travel restrictions have changed since 2008," revealing that the number of countries with HIV restrictions dropped from 59 in 2008 to 35 in 2015. While, as even UN's CERD has noted, South Korea should be included on the list of "countries, territories and areas [which] impose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status," it instead includes South Korea among the "countries, territories and areas that have no HIV-specific restriction on entry, stay or residence."

For whatever reason UNAIDS has not corrected this. In response, the American Public Health Association drafted a policy statement titled "Opposition to Immigration Policies Requiring HIV Tests as a Condition of Employment for Foreign Nationals" and "sent a letter to UNAIDS urging it to revoke its recognition of South Korea’s status as a country without any HIV restrictions – until it actually produces and enforces policies that actually reflect that status." As well, the World Federation of Public Health Associations is to adopt a corresponding policy at their assembly which is currently in progress. Here is an excerpt of the American Public Health Association's letter:

One such example of misrepresentation of HIV-related immigration policy can be found with the Republic of Korea (ROK), which subjects foreign nationals applying for visas to work or study under several visa categories to mandatory HIV testing. Recent decisions by the UN Committee on the Elimination of Racial Discrimination and the National Human Rights Commission of Korea both confirm the ongoing existence and enforcement of mandatory testing for E-2 visa applicants and recommend that they be struck down. Unfortunately, despite this discriminatory requirement, ROK representatives declared at the 2012 International AIDS Conference that their government had removed all HIV-related travel restrictions and, as a result, the country was granted “green” (restriction-free) status by UNAIDS, while other states with HIV-related restrictions similar to those enforced by ROK are still classified as “yellow” on this map. This inconsistency in the application of UNAIDS’ assessment criteria could threaten the progress made on reducing HIV-related travel restrictions. We strongly urge UNAIDS to revoke ROK’s status as a country with no HIV-related travel restrictions until it eliminates all mandatory HIV testing policies.

It's nice to see such a stand being taken, and hopefully such pressure will move the ROK government to finally respond to the CERD and NHRCK decisions. The full letter can be read here.

Korea Herald on HIV tests for English teachers

The Korea Herald published an article the other day titled "Controversy persists over HIV test for English teachers." The most important part of the article is this section:

This policy, introduced in 2007 after complaints from locals over “dangerous law-breaking foreigners,” including English teachers, may come to an end soon, as the government is considering a recent recommendation by the country’s human rights panel to do away with it.

“The Justice Ministry is collecting opinions from relevant ministries such as the Ministry of Education and the Ministry of Health and Welfare to decide whether to accept the recommendation,” it said in response to an inquiry by The Korea Herald.

A recommendation of the National Human Rights Commission of Korea is not legally binding, but the government must decide whether to accept it within 90 days. In this case, the deadline is Dec. 7.

Hmmm. While it's good to know when the deadline is, December 7 [or the 8th, in Asia] isn't a day in history which featured Westerners being particularly well-treated in Asia.

 Monument to Asia Rising...

...December 8, 1941.

(This is what replaced Horace Underwood's statue at Yonsei University; it now stands in the garden of Yonsei's museum. Hat tip to JiHoon for showing me this.

But back to the article:

"We made health checks mandatory for some foreigners through a revision of the AIDS Prevention Act in 2007 after some crimes by foreign language instructors and illegal drug use led to social problems," an official from the Justice Ministry said.

And I was just voted president of the United States. Seriously? How about: "We made health checks for HIV and drugs mandatory for some foreigners through a policy memo which, when challenged, we said was perfectly legal but meanwhile were quietly changing to an enforcement ordinance / regulation which was passed on April 3, 2009, almost a year and a half after we began testing teachers" (first result here; check cache for non-hwp version). The E-2 tests were not enforced by a revision of the AIDS Prevention Act.

"Even if we scrap the mandatory HIV testing, many are still subject to the testing according to the AIDS Prevention Act by the health ministry or Private Institute Management Act by the Education Ministry," the official said. "And we don’t send back foreigners or don’t refuse to issue alien cards when they are proven HIV-positive."

Again, there's nothing connecting E-2 visa-holders to the Aids Prevention Act, As for the Private Institute Management Act, have a look here. You won't see anything about HIV tests. Drug tests are mandated, yes, but not HIV tests. But hey, that's just two things completely wrong. I'm sure we can take the "And we don’t send back foreigners or don’t refuse to issue alien cards when they are proven HIV-positive" at face value.

In 2009, Lisa Griffin from New Zealand, who was then an English teacher at an Ulsan-based elementary school, filed a petition to the NHRCK as well as to the UN International Committee on the Elimination of Racial Discrimination after her school refused to renew her contract over her refusal to submit an HIV test result.

The UN committee ruled last year that HIV testing of teachers on E-2 visas is racial discrimination, saying the policy is not “justified on public health or any other grounds.” The committee urged the Korean government to compensate her for moral and material damages.

In September, the NHRCK also backed the UN decision, calling it "stigmatizing" and "discriminatory."

This muddles the chronology. Yes, a petition was filed to the NHRCK - which rejected it. A petition was also filed to the Korean Commercial Arbitration Board - which rejected it. The only reason it could be taken to CERD was because these "Local [or domestic] Remedies" failed to provide redress. The NHRCK only took up the case after CERD ruled in Griffin's favor.

Shall we pass by the assertion that "Without the HIV testing, there is no way to screen teachers from abroad and keep our children safe"? Like shooting fish in a barrel, so let's. Moving on:

But Lee Kyung-ja, who heads the parents’ rights group Student First, said that foreign teachers and Korean teachers alike should go through the HIV testing. "It is worrisome that more and more young people contract HIV-AIDS these days and we don’t know where they get it from," Lee said. "To ensure children’s health, all teachers -- whether they are foreign or local -- should prove that they are HIV-free."

To her question about where they get it from: having sex with someone who has HIV or sharing needles. Mind you, the drug arrest reports for foreign teachers tend to reveal busts for marijuana or perhaps ecstasy - not the kind of thing you inject intravenously. The article includes these statistics:

According to government data, the cumulative number of HIV and AIDS patients was 10,502 through last year, since the first case surfaced in 1985, with 92.7 percent of the patients being male. There were 1,152 newly registered cases last year, with 33.3 percent of them being in their 20s. Among them, 1,018 were Korean.

There are more statistics here (since 1985).

[T]he compulsory HIV testing of certain groups will only reinforce long-held stigmas and fear surrounding HIV and AIDS in the country, alienating and excluding people living with the disease, another expert said.

Patients living with HIV and AIDS are often subject to discrimination and have trouble accessing health care facilities, traveling and seeking employment.

"The government’s health polices for preventing HIV-AIDS come from ignorance," said Son Moon-soo, who heads an association of HIV and AIDS patients called KNP+. "The outdated measures create the wrong perception that HIV-AIDS is a foreign disease which foreigners brought into the country." [...]

"Rather than implementing discriminatory policies against foreigners, there should be more education on safe sex and how HIV-AIDS is transmitted and prevented to fight the disease," Son said.

As has been noted before, the stigma in Korea against HIV-AIDS is pervasive and has stark consequences for those who have been infected. In fact, the stigma is deadlier than the disease.

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

Article in the Diplomat about stigma against HIV/AIDS in Korea

Update:

Another worthwhile article on this topic by John Power can be found here.

Original Post:

Last week The Diplomat published an article by Dave Hazzan subtitled "Stigmas against homosexuality and HIV/AIDS combine to keep patients isolated."

Widely assumed to be a “gay disease,” even by some of the country’s most influential doctors, AIDS patients are often disowned by family, thrown out of hospitals, and refused vital care. Many foreign residents face mandatory HIV testing, and are deported if found to be HIV-positive – despite government assurances to the UN that such tests ended years ago. Koreans have little understanding of the disease, and in a recent survey most said it would be difficult to get along with a neighbor who is HIV+.

“It isn’t hard to find a doctor, because Korea is a top country for medical treatment,” says Son Moonsoo, the president of the organization Korean People Living with HIV/AIDS (KNP+). “Korea has plenty of medicine and medical practitioners. But it’s only for healthy HIV patients. For people have developed into full-blown AIDS, who need to stay in [a long-term facility] there is nowhere for them to stay.”

Further, patients who need non-AIDS related procedures – treatment for a broken hip, or even a dental cleaning – are routinely refused care when they reveal their HIV+ status.

The article rightly paints a dire picture of discrimination and human rights violations for Koreans who are HIV+ or who have full blown AIDS. The ROK also continues to portray itself to UNAIDS as a nation that does not test foreigners (as of 2015), which is certainly not true. It also acknowledged but otherwise ignored the UN CERD ruling on HIV testing for foreign teachers - let no one say that ROK does not also attempt to defend its sovereignty as vigorously as its brethren state to the north!

This paragraph struck me as being somewhat misleading, however:

AIDS being viewed as a foreign evil is most obvious with the mandatory testing of certain foreigners in Korea. During the 1988 Seoul Olympics, activists held demonstrations to demand HIV testing of all foreign visitors, and the press erupted in a sexual panic, urging Koreans not to have sexual relations with foreigners. But no testing was required. It was only in 2007 that foreign English teachers in Korea were required to undergo mandatory HIV testing. 

This makes it seem as if there was no testing of foreigners until 2007, but as pointed out here, testing for what would become the E-6 visa began in 1989, while the Ministry of Labor decided that migrant workers under the Industrial Trainee System were to be tested for HIV immediately upon entering the country on August 9, 1994.

The article also makes the claim that "Not a single foreign teacher had been identified as HIV+ in Korean history," but this is not true, as this article from 2009 about native speaking teachers working in Gyeonggi-do reveals:

On October 1 [2008], during the hiring process, a female teacher at a middle school in Gapyeong was found to have caught HIV from her husband while in another country and was deported 9 days later.

Earlier this year, two native speakers at a middle school in Icheon and a middle school in Paju had their employment canceled when they tested positive for HIV during their health check.

As for the assertion that mandatory HIV tests "Tellingly...are not required of ethnic Koreans," I don't think that's necessarily true. While gyopos on F-4 visas are not subject to E-2 visa rules for HIV tests mandated by immigration, nor were HIV tests included in the 2011 amendment to the hagwon law which required drug tests for those on any visa working as native speaking instructors in language hagwons, public schools may mandate tests for anyone (including Korean citizens) working as a native speaking teacher, while those gyopos who do not have F-4 visas would be subject to the tests under the E-2 visa. What the public school tests reveal, in their requirement to test anyone - even Korean citizens - working as a native speaking teacher for drugs and HIV, is the belief that to speak English fluently one must have come into contact with actual native speakers enough to have possibly been "contaminated" by them, with women in particular being suspect since they may have learned "body language" from foreign males as well (and thus need to be tested). All of this goes to show that there is also a cultural component along with the racial component of Korean xenophobia regarding Westerners.

As for the idea that the HIV tests were introduced for foreign teachers for the purpose of "stigmatizing foreigners, especially men, who date Korean women, something that can offend the racial sensitivities of some more conservative Koreans," it should be pointed out that "conservative" in this case refers to social conservatism, and not political conservatism. On Anti English Spectrum's site is an html file documenting a very long chat between AES members two days after AES was established (in January 2005) in which they discuss how to proceed. I've read only a little of it, but near the beginning one member says that the solution to their problems would be reunification, which reflects the zeitgeist of the time but also suggests a more left-leaning political disposition. Many of AES's slogans reflected those of left-nationalists who led the anti-American charge in the late 1980s and 1990s. On the other hand, the source of those slogans, and the idea that the decadent culture of the west had to be held at bay lest it corrupt Korea, goes back much further, and was championed by none other than Park Chung-hee throughout his rule. In the 1980s HIV / AIDS became the perfect metaphor for western corruption, decadence, and moral failure, which may help to explain the endurance of the stigma decades later.

EPIK fail

Update:

Over at 10원 Tips, Sam Nordberg has found the source of this photo and reveals the extent to which it was photoshopped.

While I think of it, it might be worth revisiting the photo contest winner posted here, and this post as well.

Original Post:

A few weeks ago I posted about how female E-2 visa-holders now outnumbered males, and also posted images showing how female foreign teachers have been depicted in promotional material for SMOE, EPIK, and hagwons. And then I stumbled across this EPIK page:

If you click to enlarge it to full size, as it appears on the webpage, it's clear enough that... well, that the photographer and whoever designed the web page were male. Needless to say, I can't imagine EPIK depicting a female Korean teacher this way.

The sample contracts on that page declare that the "Employee shall not behave in any manner that may damage or tarnish the reputation of the teaching profession in general or of the S.M.O.E. program and the undersigned Employer in particular during the Term of Employment" and
the "Employee shall not be involved in any activities that may cause harm to the students or be of detriment to the reputation of the school, District Office of Education, and Seoul Metropolitan Office of Education." Perhaps it should add in a clause stating that the "Employer shall not depict Employees in promotional material in a way that tarnishes their image"?

Perhaps that could be said of the contract itself:

"The Employer will immediately report the Employee to the appropriate agencies once the Employer becomes aware of any illegal action (Narcotics, etc.) by the Employee and the Employee shall be subject to prosecution and punishment according to Korean Law." 

Perhaps I'm overstating things, but still, there's legally covering all the bases and then there's acting like you're expecting certain illegal behavior from your employees.

Part 3 of my interview with The Korea File about the 1975 marijuana crackdown

Last week I posted links to the first two parts of an interview with myself by Andre Goulet for his podcast, The Korea File (Part 1: "A History of Korean Social Movements"  Part 2: "Korean Identity and Anti-Americanism"), and yesterday he posted the third and final part, titled "Weed, Counterculture and Dictatorship," about how rock music and the counterculture were suppressed under the guise of a marijuana crackdown in 1975.

The propaganda film I mentioned (found at ehistory.kr) was found and posted by Mark Russell here.

Thanks again to Andre inviting me to do this interview; have a look under "Episodes" here to look through the other interviews about Korean music, culture, and society he's done.

Korea Times on the CERD decision and its 'piquing' of the government

Last Friday the Korea Times reported on the CERD ruling in an article titled "UN racism ruling piques government" (hat tip to commenter Jessica). Describing the ruling, the article opens as follows:

The government remains slow in responding to calls for the removal of racist policies, running the risk of further alienating itself from global standards.
[...]
The U.N.-affiliated committee ruled Wednesday that the HIV testing of foreign teachers in Korea is a form of discrimination.

Mind you, nowhere in the article is there any proof offered to back up the assertion that the government has been piqued by or is resentful of this ruling; only the following is reported:

In reaction, the Ministry of Justice admitted that it was aware of the ruling through media reports.

"We have not received an official ruling through the Ministry of Foreign Affairs yet. We will make a decision on how to respond to the ruling after we receive it," a ministry official at the immigration control bureau said.

It will be interesting to see what happens, especially considering the fact that the government took nine months to respond to the CERD petition for in the first place (six months past a 90 day deadline), and the local media ignored the initial acceptance of the petition completely. As well, headlines here are portraying the ruling as Korea being admonished by the UN (Korea Times: "Korea told to scrap HIV test on foreign teachers,"  KBS: 'UN CERD: "Korea, testing only foreign instructors for HIV is a violation of human rights."' SBS: 'UN CERD "Korea, abolish HIV testing of foreign teachers."') which could be spun into a blow to Korea's sovereignty (and pride).

The Korea Times also reported that:

HIV and drug tests were introduced in 2007 for E-2 (foreign language instructor), E-6 (artistic performer) and E-9 (non-professional employment) visa holders.

The government later scrapped the requirement for E-6 and E-9 visa holders after facing criticism from international figures and organizations, including U.N. Secretary General Ban Ki-moon. Yet it still remains for E-2 visa holders.

While it's true that E-2 HIV tests were introduced in 2007 (with a lot of help from Anti-English Spectrum), HIV testing for what would become the E-6 visa [ie, "entertainers"] was in fact introduced in 1989, and came as a result of the anti-AIDS campaigns prior to and during the 1988 Seoul Olympics. The tests for migrant workers, now considered E-9 (non-professional employment) visa holders, but from the late 1980s labeled "industrial trainees," were implemented in 1994, so the E-6 and E-9 HIV testing regimes had been around, in the former case, for over twenty years when they were (so we're told) removed in 2010. As for U.N. Secretary General Ban Ki-moon, he not only called for removal of testing in general, but after the ROK left the E-2 tests in place, he also specifically urged that they be removed as well.

Still, it's nice to see that the KT contacted Immigration for a comment.

CERD rules that HIV tests for foreign teachers in Korea are discriminatory

In late 2009 I posted here about a foreign teacher who was refusing to take a second HIV test in order to renew her teaching contract at an elementary school in Ulsan. As a result she lost her job and left Korea, and with Benjamin Wagner representing her, she filed complaints with the National Human Rights Commission of Korea (which rejected it) and Korean Commercial Arbitration Board (which ruled against her). Then in July 2012 it was announced that the United Nations Committee on the Elimination of Racial Discrimination had agreed to hear the case, though not a single Korean media outlet chose to report on this despite receiving a press release from a PR firm. Given 90 days to reply, the ROK instead took 9 months to reply. In its reply, the ROK stated that "since 2010, its guidelines on the employment of foreign teachers do not specify that [foreign teachers] have to submit results of HIV/AIDS and drugs tests to have their contracts renewed," an assertion which I knew personally was not true (and which the Korea Herald looked at here). In 2010 the ROK had in fact officially removed all HIV tests for those registering for residency except for the E-2 visa tests.

In a journal article coauthored by Benjamin Wagner and myself, we asked in the title whether HIV tests were a proxy for racial discrimination, and this week the CERD answered that question: Yes.

As Benjamin Wagner wrote this week,

On May 18, 2015, the United Nations Committee on the Elimination of Racial Discrimination decided the case of a former native English teacher from New Zealand. Ms. “L.G” lost her job and work visa in 2009 after she refused to take a second round of in-country drug and HIV tests demanded by the Education Ministry just months after submitting to identical tests for the purposes of immigration. Korean citizen teachers and even ethnic Korean noncitizen teachers are able to avoid such tests. Ms. L.G. correctly regarded the government’s demands as based on unfounded stereotypes of foreigners as drug users and sexual deviants. While immigration has required a single negative test result for HIV and drugs for prospective foreign teachers since 2007, the Education Ministry began demanding their own tests, meaning that many teachers are tested multiple times during their time in the country.

In 2012, the Committee accepted L.G’s petition after she had exhausted all possible solutions in Korea (a prerequisite for bringing complaints under the CERD) including filing unsuccessful complaints with the National Human Rights Commission of Korea and Korean Commercial Arbitration Board.

An official summary of the decision is here, while the full decision can be downloaded as a .doc here. As can be seen here, of four cases considered this session by CERD, only this case was considered to be in violation of the Convention for Eradication of Racial Discrmination; the summary points out which articles of the convention the ROK was found to be violating in this case.

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.

As well, national assembly representatives have said a number of negative things about foreign teachers over the year. In June of 2009 Rep Choi Young-hee submitted 3 bills regarding native English teachers to the national assembly which called for drug tests for foreign teachers, with the bills stating that "the crime rate among native-speaking English teachers is getting higher" without offering any proof of such an increase. She also stated that immigration had lost 22,000 E-2 visa holders, but as it turns out, she used the wrong statistics. A few months later, Rep. Lee Gun-hyeon stated that foreign teacher crime was 'serious,' but released statistics showing it to be 5 times less than the Korean crime rate. Rep. Park Min-sik would chime in a month later on the "flood of unqualified native speaking teachers", while National Assembly Rep Lee Ju-yeong stated that "Of foreigners, native speaking teachers are especially potential child molesters" who may have many 'undisclosed crimes' and who may fake their backgrounds. None of this quite compares to the racially charged statements made by Kim Han-gil, who was recently the leader of the opposition party, back in 1997 about the "white good-for-nothings" flocking to Korea to teach English, and despairing that the "low culture of English speaking countries is penetrating into living rooms." He also proved to be ten years ahead of the curve by complaining that foreign teachers "they don't even have to take drug or AIDS tests."

As for the media, this decision is being widely reported. For example:

Source - UN
Republic of Korea’s foreigners-only HIV tests violated New Zealand teacher’s rights — UN experts (Office of the High Commissioner for Human Rights, Geneva; 20 May 2015)
Republic of Korea’s foreigners-only HIV test violated New Zealand teacher’s rights — UN experts (UN News Center; 20 May 2015)
Korea’s foreigner-only HIV tests violate NZ teacher’s rights (Scoop, New Zealand; 21 May 2015)
HIV tests for E-2 visas discrimination, U.N. Finds (Korea Herald, 20 May 2015)
UN Experts Urge S Korea To Compensate New Zealander Who Lost Job Over HIV Test (RTT News; 20 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (NewKerala.com, Kerala, India; 21 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (IndiaBlooms.com, India; 21 May 2015)

I really like the headlines of the first two articles here, and am glad the CERD chose to make UMOE's justification for the tests public:

Source - AFP
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (Radio Australia, ABC; 20 May 2015)
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (ABC News, Australia; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Yahoo! News, Australia; 20 May 2015)
UN experts rap S Korea over AIDS test for expat teachers (Economic Times, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Business Standard; 20 May 2015)
UN experts rap South Korea over AIDS test for expat teachers (Zee News, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (NGR News, Nigeria; 20 May 2015)
SK demanded Aids test for expat teacher (IOL News, South Africa; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Global Post; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Bangkok Post; 20 May 2015)
UN experts rap S. Korea over AIDS test for expat teachers (The Straits Times, Asia; 20 May 2015)
UN experts rap S.Korea over AIDS test for teachers (Press Trust of India; 20 May 2015)

Source - NZN
UN says Kiwi kicked out of South Korea for refusing AIDS test should be compensated (TVNZ; 21 May 2015)
UN backs Kiwi teacher kicked out of Korea (NZCity, New Zealand; 20 May 2015)
Kiwi teacher asked to take AIDS test (3 News, New Zealand; 20 May 2015)

As well, unlike how the Korean media was able to ignore the case when it was accepted, it is being reported here in a limited manner (ten articles), with the Korea Herald first breaking the story, followed by Yonhap:

UN CERD "Korea should abolish HIV tests for foreign instructors" (Yonhap; 20 May 2015)
UN CERD: "Korea, testing only foreign instructors for HIV is a violation of human rights" (KBS; 20 May 2015)
U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap English; 20 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (Money Today; 20 May 2015)
UN: "Korea’s testing of foreign instructors for HIV is a violation of human rights" (; 21 May 2015)
UN CERD "Korea, abolish HIV testing of foreign teachers" (SBS; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (News1; 20 May 2015)
UN: "Foreign instructor HIV tests are character defamation" (MBN; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test for human rights violations" (Le Monde Diplomatic; 21 May 2015)
UN racism ruling piques government (Korea Times; 22 May 2015)

Since Yonhap English news articles tend to be truncated after a few days, here's their English translation of the story:

U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap; 20 May 2015)

GENEVA, May 20 (Yonhap) -- A United Nations committee on Wednesday reprimanded South Korea's mandatory HIV testing of native English teachers as discrimination against foreigners, urging the country to abolish the policy.

Foreigners who come to South Korea to teach English are required to have a criminal background check and tests for illegal drugs and the HIV virus, while Korean nationals in equivalent jobs are not required to go through such scrutiny.

The U.N. Committee on the Elimination of Racial Discrimination (CERD) has deliberated the policy after Lisa Griffin, a former English teacher from New Zealand, filed a complaint when her contract with a local education office was not renewed in 2009 over HIV testing.

Griffin, who had received a negative result on the first test, refused to undergo a second, arguing it could stigmatize foreigners as people who have a higher risk of AIDS and could spread a negative sentiment against them.

The Geneva-based committee said the foreigner-only HIV test was "discriminatory and an affront to her dignity," urging the South Korean government to compensate for "moral and material damages" she suffered.

The mandatory testing "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 to race, color, national or ethnic origin," the committee said in a release.

The U.N. committee urged Korean authorities to take steps to revise the policies that stereotype or stigmatize foreigners, giving them 90 days to report back on the process.

As someone who contributed research to the CERD petition, I'm really happy with the results. What happens next is up to the Korean government.

Update:

More about the Korea Times' report can be read here.