United Nations Declares South Korea’s Mandatory HIV Testing for Foreigners Is Racial Discrimination

United Nations Declares South Korea’s Mandatory HIV Testing for Foreigners Is Racial Discrimination

South Korea has come under fire in recent years for its treatment of immigrants, migrant workers and non-ethnic Koreans. Last fall, Bitter Harvest, Amnesty International’s report on the country’s treatment of agricultural migrant laborers, highlighted how South-east Asian migrants went unpaid, were subjected to harsh treatments and squalid living conditions and were deprived of medical care. In some cases, the migrants were forced to take (and pay for) an HIV test, with employers requiring a negative test result.

In the case of migrant workers, this is clearly illegal — currently, the only visa category for which the South Korean government requires an HIV test is an E-2 (native-speaking English teachers from Australia, Canada, Ireland, New Zealand, South Africa, the U.K. and the U.S.). However, even this requirement has been determined to be discriminatory and racially motivated, according to a ruling from the UN’s Committee to End all forms of Racial Discrimination (CERD) handed down last week.

The ruling was issued in response to a case filed by a New Zealand woman who lost her job in 2009 after refusing to take an HIV test to renew her contract. The case was brought to CERD in 2012 by Benjamin Wagner, an international human rights attorney who co-authored a legal paper on the issue of South Korea’s use of HIV testing as a proxy for racial discrimination with Matt van Volkenburg, who has been covering this issue at the long-running expat blog Gusts of Popular Feeling since it all began.

The Ulsan Metropolitan Office of Education (UMOE) — the defendants in this case — argued that, rather than serving as a(n albeit bad) public health measure, the HIV tests were viewed as a “means to check the values and morality of foreign English teachers.” The CERD not only recommended that the UMOE pay back wages to the teacher that was fired, but that the Korean government strike down the law and “counter any manifestations of xenophobia, through stereotyping or stigmatizing, of foreigners by public officials, the media and the public at large.” Whether the government will remove the testing requirement or implement any of the recommendations remains to be seen.

HIV tests for foreign nationals applying for certain classes of work visas have been in place since 2007; the government dropped them for all classifications except the E-2 visa in 2010. Last year, the Ministry of Education dropped the requirement for visa renewal but still required the test for new visa applicants. Any foreigner who tests positive for HIV is immediately detained and deported; in 2008, the Korean CDC reported that it had deported 521 out of 647 HIV-positive foreigners.

Non-nationals of Korean ethnicity have been able to successfully challenge such deportations, but the Korean judicial system explicitly differentiates between the legal rights of citizens versus foreign nationals. Interestingly, South Korea’s treaty with CERD gives it “the same authority as domestic law” regarding foreign nationals. According to Wagner, “Unfortunately, however, the treaty remains relatively unknown in Korea and neither the government nor the courts have done enough to change that.

It will be interesting to see how the Korean government will respond to the CERD’s ruling — whether it will in fact change the law in accordance with its treaty obligations. Based on South Korea’s history of human rights protections, it does not look promising. Even when human rights principles are codified into law, employers (and often police officers) who violate workers’ legal rights do so with widespread impunity and are rarely prosecuted or held accountable — as demonstrated by the cases of the migrant workers in Bitter Harvest and the workers enslaved on salt farms on the islands of South Jeolla. The admission that HIV tests were seen as a way to “check the values and morality” of Visa applicants is a slap in the face — doubly so considering that only foreigners are required to have “upright values” in order to get jobs.

Nonetheless, the CERD ruling is a major victory — a solid foundation on which to pressure the South Korean government, which has demonstrated that it wants to be taken seriously in the international community.

Additional Information:
A summary of the UN CERD ruling can be found at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15981&LangID=E.

HIV/AIDS Tests as a Proxy for Racial Discrimination? A Preliminary Investigation of South Korea’s Policy of Mandatory In-Country HIV/AIDS Tests for its Foreign English Teachers (Journal of Korean Law): This paper is available by visiting: http://s-space.snu.ac.kr/bitstream/10371/85184/1/03_BK%20Wagner_OK.pdf

Gusts of Popular Feeling: This long-running Korean expat blog can be accessed at: http://populargusts.blogspot.com/