Thursday, April 06, 2017

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.

Monday, March 20, 2017

Strange bedfellows

[Update, March 30: Gord Sellar has written about this article as well.]

[Update, March 21: I added a link to the Rape Crisis Center (hat tip to John Power), which is in Daehangno, (not Itaewon). I also added explanations to two photos and added two more photos to illustrate attitudes toward white women.]

Original post:

The other day Robert Neff discovered an article titled "Who Gets Sick From Yellow Fever? What Carceral Feminism Does Not See." To answer the obvious question, carceral feminism "is used to define any feminist who believes the criminal justice system should protect and serve women who are victims of rape and other forms of male violence". The term is used by those who criticize such an approach, as the author of this article does. To understand why, we start in... Itaewon.
When the dark glides over, it masks the emptied beer cans and vomit stains, and brightens up with neon lights to welcome couples and tourists to trans bars, massage parlors, 'Homo Hill,' and hip-hop clubs. 
Thus Itaewon is seething with sex of all sorts. Though she does end the paragraph by saying that "Itaewon has rebranded itself as a hotspot for foodies, tourism, and nightlife," tales of streets full of Koreans dining at upscale eateries and drinking in craft beer bars is not the first impression she wants to create. [For more on the gentrification of US military camp towns, see this interview with Geoffrey Cain.]
One of its staple landmarks 'Hooker Hill' echoes its legacy of sex workers, criminals, and foreigners. It is in Itaewon that I first overheard young white men talk about their sexual conquests of 'tight Asian pussies.' 
Sadly, she seems unaware that its been 12 years now since the wretched hive of white scum and villainy expanded to Hongdae. Or as the Herald Gyeongje put it in 2005, Hongdae was "an area hot with youthful passion that has degenerated from being mixed up with foreigners," which led to certain rumors that caused great bitterness.
Yellow fever, however, is not a simple matter of preferences. During my time working at the Seoul Rape Crisis Center, one of the more well-established response service in Korea, I saw how yellow bodies silently absorbed this cost: sexual assault of Korean women by white men, mostly American, constituted at least a third of the Center’s cases.
That's a rather shocking statistic. This is partly because this list (#21) of registered, non-gyopo foreigners in Korea (by city / district / province / county) as of the end of December last year (from the Korean Immigration Service's website; a list of registered gyopo is here (#41)) reveals that the population of registered foreigners from Western countries with the largest populations in Seoul consisted of 9738 men; for Gyeonggi-do, there were 5929 men. As those from other Western countries might add up to another 1000 or so, that would make for a total of 16,667. This would not include tourists, however. This chart (#3), showing the total number of foreigners in Korea in December 2016 by country and visa category, shows that there were 14,027 men from North America and 3163 men from Australia (the two largest Western countries represented in that category by far) who were in Korea on a B2 Tourist visa. We have no idea where they stayed or what percentage were white; among registered foreigners, gyopo make up about a third of Americans and half of Canadians. I would imagine an estimate of 15,000 white male tourists from these countries being in the capital area would be a very generous one indeed. Also not included among registered foreigners are US military. There were said to be 29,300 in Korea in 2014, With the closure of bases near the DMZ and expansion of Camp Humphries in Pyeongtaek, I'm not sure how many are in the capital area now. Let's be generous and say 20,000.

Thus, 16,600 registered male westerners + 15,000 male western tourists + 20,000 US military = 51,600 western males in the capital area, the population of which is 10,290,000 (for Seoul) and 12,342,448 (for Gyeonggi-do) for a grand total of 22,633,000, which should be divided in half for the male portion of the population (11,317,000). 51,600 thus makes up 0.46% of the male population of the capital area, and yet somehow they are responsible for a third of the Rape Crisis Center's annual cases, suggesting they rape at a rate 66 times more than their percentage of the population. This is, frankly, unbelievable. Perhaps this center is a branch in Itaewon; referring to it as "the Seoul Rape Crisis Center," however, gives the impression that it is not a branch. Needless to say, I'm rather skeptical. [Update: A link to the center's site is here; it's in Daehangno, so my skepticism just increased by a few orders of magnitude (hat tip to John Power).]

Just who are these dangerous, sex-crime-committing white men?
From what I could gather, they were recent college graduates from the US who had come to Korea to ‘make easy money’ (read: teach English in one of many hak-wons, or tutoring academies) and ‘experience the nightlife.’ [...] With the constant influx of young, college-educated white men in Korea, yellow fever flows back to the East.
Ah, so it's English teachers, then. Her problem with "carceral feminism" is that these men cannot be incarcerated due to the freedom their American passports and globalization gives them:
If the American state can prove its neoliberal conviction through deploying Korea as an example, so too can whiteness assert its masculinity by consuming ‘tight Asian pussies.’ Under white gaze, Korean girls, available and desperate, come with no strings attached; when there are strings, they can be severed easily by flying back to the US.[...] 
The normalization and prevalence of sexual violence against Korean women by white men demonstrate the material consequence of the unequal distribution of mobility.[...] The Rape Crisis Center’s record quantifies this kind of assault as a third of its annual cases[. ...] These assaults often take place in bars, clubs, and motels of areas like Itaewon. Survivors rarely know their assailants, and do not recall enough identifiable details to file a report. Those who are able to make a report find themselves in a dead end when they find out that their assailants have left the country. White men come and go–untraceable and unaccountable. [...]
He has been removed, but at his own will, and his ability to return cannot be removed from his whiteness and Korea’s neoliberal development. Without the assailant to prosecute, carceral approaches can neither support individual survivors, nor address the root cause. The cycle of white men leaving behind survivors continues.
There's nothing wrong with examining structural reasons for a phenomenon that most certainly does occur. And to be sure, "carceral approaches" face limitations when their targets can flee the country with relative ease. But there there is not enough of the concrete here (beyond the exaggerated statistic above), and readers are faced with this:
Interrogating the process through which yellow fever becomes embedded in Korea’s cultural economy presents a compelling case study of the intersections of neoliberal development and racialized colonial desire. [...]
[We must move] beyond yellow fever as fantasy. To resist the fantasy, we must begin by restoring its bodies–bodies that echo the history of American GIs and the women they used up and left–and reckon with the forces of globalization, borders, misogyny, and colonial desire that lie at its heart.
And so we deal with embeddedness, intersections, colonial desire and bodies. There may be another academic term missing from all of this, however. That these "assaults often take place in bars, clubs, and motels of areas like Itaewon" and that the women "do not recall enough" suggests perhaps that they were drinking with these men. The reason they might be drawn to them? The US is the land of milk and honey for these women:
For women, dating white men is a means through which they can access this fantasy. A friend of mine recounted her peers’ reaction when she revealed her partner to be a white American. “That’s the dream!” they exclaimed. In this dream, life is prosperous, exciting, and stable. The white man lives this dream and, thus, the proximity to him brings the dream closer. The white man becomes the dream. 
These women are portrayed as being deluded by the fantasy of America. Which might suggest why the author never uses the term "agency," since she basically robs these women of it by portraying them as nothing but victims, both of white men and of their own delusions which prompt them to approach these likely rapists in the first place. Korean girls, she says, are "available and desperate," but this sounds more like a description of Korea decades ago (at least regarding the use of 'desperate').

And when she writes that "their immobile bodies absorb the cost of whiteness," I'm reminded of cases like this, and the way in which white women are perceived by some Korean men who want to "ride the white horse" and post tips on "hunting" white or other foreign women. One gets the idea, however, that Koreans can only serve as victims, and not perpetrators.

(Both scenes are from the 2003 film "Please Teach Me English")

What is rather disturbing is the degree to which the attitude above, particularly in demonizing white men and portraying Korean women as dupes and victims, is similar to others we've seen before, such as this:
It's always just sad that some thoughtless women sympathize with foreigners who they don't realize have approached them with this (sexually demeaning) way of thinking about Korean women." "This is a place where people who are worried about this and who want to make an issue of foreigners who demean Korean women as if they are all cheap whores."
The place in question is the Anti-English Spectrum cafe, and the writer was 'Bba'allyuchi,' its founder. The cafe was founded during the 2005 English Spectrum Incident, and responded to women seen dancing with foreign men in a less-than favorable fashion: "Some online articles and the Anti-English Spectrum cafe branded us as whores, yanggongju, and pimps." Likewise, for members of the cafe and critics of these women, there was a corollary to "tight Asian pussy": "but later when a Korean guy takes her home, he'll know by her massively stretched hole he's been tricked and she's a whore."

Such criticism has appeared more recently, of course. A 2012 report on MBC portrayed women in relationships with white men in a negative manner (complete with an AIDS scare), and the producer said that "the piece intended to portray 'Korean women who are out of their sense and get involved in these kinds of affairs.'" He also said that "We need to be awakened and try to change this culture," NoCut News that same year published its 12-part "The Reality and Twisted Values of Some White Men" Series, while the next year JTBC described foreign men who try to pick up Korean women as having committed "sex crimes" and even dramatized a 'pick up' manual:

In a similar manner, the internet tabloid Ilyo Sisa also published a tour de force in the summer of 2012 titled "'Tips for targeting Korean women' spread by foreign English instructor spreads quickly: Treat them as 'sex toys' and throw them away when they're finished":
The disparaging of Korean women by foreign English instructors and foreigners living in Gangnam or Itaewon is not something that just started yesterday. White men who deliberately approach Korean women for sex or to defraud them commit all kinds of illegal acts against Korean women. Even worse, anyone can commonly hear about incidents of illegal drug taking and rape by foreigners. However, claims that the cause of these incidents is a national character which is lenient towards white people are gaining traction. We are publicizing detailed excerpts of some posts from "Anti English Spectrum," a blog which denounces the barbarity of foreigners.[...]

Though Korean men have a more outstanding financial capability than white men, Korean women absorbed in white supremacy prefer white men more and think they can learn English for free and choose white men without hesitation. Among northeast Asians (Japan, China, Korea), Korean women are considered the easiest and fastest to sleep with[.] [...]

Because of the open sexual consciousness Korean women have towards white men, there are countless instances of harm done to them. One woman became pregnant after a one night stand with a white man she met in a club, and after finding out contacted the white man but he had already left the country and she decided to get an abortion.[...]

Another woman's case was even more serious. C, a university student who had dated a foreign man once, said in a media interview, "Foreigners' habitual fraud can be seen as charming. They often move in together with a girl and pretend to be her lover and then pocket the rent and deposit and leave the country, and a girl I know who dated a foreign man had a health check and was diagnosed with AIDS and sank into depression." "Most of them (white men) think of Korean woman as targets for one night stands, and there are almost none who think of having a romantic relationship with them. When something happens with a girl, they get afraid and evade responsibility by changing their phone number beforehand or by leaving the country and disappearing."
The tone of these such articles vacillates between portraying these women as victims of dastardly white men or as clueless dupes who are far too willing to trust white men (and thus are responsible for their predicament and deserve criticism (or worse)). I'll leave it to the reader to decide where "Under white gaze, Korean girls [are] available and desperate" fits.

As for depicting them as victims of white men who would rape them, such one dimensional portrayals can be found outside of newspapers or websites:

(From the 2008 TV show "Sexy Mong Returns," billed as "an episode involving sexual assault by foreign English teachers, something that has been a social issue for some time." The rapist is in fact a Korean man who pretends to be a foreigner because women like foreigners more... but he still needs to drug and rape them for some reason.)

(From the 2008 TV show "Shin Hae-cheol's Damage." The episode, "Foreign Instructor and Club Girl," which features "Memories of an unforgettable gang rape!" can be watched here. Shin has performed at least one rather Anti-American song, with a little help from Psy.)

The latter film, Queen Bee, is from 1985 and features white and black foreigners violating their way through Itaewon. At that time there was a great deal of discussion on the place of white foreigners in Korean society (which led to the French foreign language teacher scandal of 1984), such as when an American was caught forging checks and living off the generosity of Korean women ("Koreans have a weakness for foreigners"), as well as an article about Itaewon from 1984 which differed from articles about Itaewon from the previous year in the Maeil Gyeongje (October 8, 1983) and Donga Ilbo (July 27, 1983) in that it portrayed foreigners in Itaewon in a very negative manner,

In January 2005 Ilda, a feminist journal, published an article about the English Spectrum incident which argued that "when extreme nationalism and patriarchal views meet, they run counter to the issue of women's rights." What happens, then, when nationalism and feminism meet? In the 1980s and 1990s there was a great deal of feminist organizing in regard to issues surrounding the US military presence in Korea. In many ways this is understandable; foreign men are a much easier target (one that Korean men would agree on) than taking on home-grown patriarchy. A Donga Ilbo article from 1988 titled "Obscene magazines, decadent movies, AIDS: 'Let's expel low American culture'" gives an example of the post-1988 Olympics mood: 
There are many incidents of the ravaging of Korean women by U.S. forces in Korea and even crimes such as molestation, and in the climate of the unfair ROK-U.S. Status-of-Forces Agreement, Korean women wind up being thoughtlessly treated like "conquered women."
While such negative portrayals of foreigners can (and did, and still does) move into racist territory, women are clear-cut victims in the stories it relays. One aspect of American culture which was bitterly criticized was an article by Hustler magazine called "Hustler's Olympic-goer's Guide to Korean Sex," which focused on paid sex in Itaewon and made some comments which raised the ire of Koreans who read it:
Korean women are the horniest, lustiest, most fuckable females on earth. Whatever she is like in the 'outside world,' bring a Korean female into close proximity of a cock, and her passions take over, [...A] huge cadre of the country's females are today sexual enthusiasts of the first order. They are available to all comers, black and white, foreign and domestic.
In the view of the 1988 Donga Ilbo article above, the Hustler article "introduced Korean women as all being prostitutes," something which was understandably insulting. In discussing the international position of Korea, the activists criticized such things as the Korean government's kisaeng tourism and the resulting position of women vis-a-vis foreigners. Such criticism may have functioned in a more coherent manner when dealing with prostitution, but when it deals with sex outside of prostitution, problems seem to arise. This situation had already arisen by 1984, and people did not have kind things to say about the young women who 'gave it away for free' in Itaewon:
"It's not just foreigners' prostitutes, now it's female university students or teenagers from good families who chase after foreigners and spend money on them, and when I see it I think it's pathetic," said Hong Gwan-pyo, who has sold souvenirs in the area for 8 years, with a sour look on his face.[...]

Han Hyung-sik (46) said "On average I carry out marriage procedures for about 20 international couples a month, but more than 70% return to divorce. Wearing a bitter expression, he also said, "When you see the unbearable sight of girls who come from university who fall only for the the appearance of white people who seem to be imbued with 'ladies first' kindness and then marry badly, even one's sense of national pride is ruined."
When nationalism comes into the picture, attempts to wrestle with "yellow fever" often end up taking on the tenor of yellow journalism, complete with misleading statistics and incredibly negative portrayals of certain (racial) groups. White men make easy money and rape and flee in the picture presented in the article. Relegating the Korean women involved in militarized prostitution to the category of 'victim of American imperialism' and nothing more was criticized in Hyun Sook Kim's chapter (in Dangerous Women: Gender and Korean Nationalism) "Yanggongju as an allegory of the nation":
[W]e must recognize that military sex workers have not been completely colonized by patriarchy, militarism, imperialism or neo-colonialism; the women do assert agency and subjectivity as Korean women. In what ways to the outcast military sex workers resist, reject, and try to invert the power hierarchy that relegates them to the lowest social standing? Do we retain the metaphor of nation as the representative discourse for collective unity and female identity, or can we develop an alternative discourse on/for military sex workers that will not re-colonize or subordinate their bodies or identities? This essay raises these unresolved questions and emphasizes the need to further investigate the ways in which the subject positions of working class women in sexual labor are constructed in defense of the nation. The first step towards 'pivoting the center' may be to chart the multiple, fragmented subjectivities of working class Korean women, such as military sex workers who have historically been excluded from scholarship and represented as passive objects in popular and radical representations. Answering these unresolved questions would thus require a critical feminist analysis of the power relations inscribed in the reading, writing and public presentations of women as the victim, the oppressed, and the exploited. Instead of essentializing the experiences of the women of Kijich'on as categorically "Yanggongju," we must begin acknowledging the agency, subjectivity, and resistance of working class women.
Her chapter is critical of those who would define these women for their own purposes, rather than actually talking to them and hearing their own stories and understanding of their experiences. I haven't come across any more of her work, unfortunately.

As can be seen in the excerpts from Korean news media above, with criticism of the "open sexual consciousness Korean women have towards white men" and of "Korean women absorbed in white supremacy" or "Korean women who are out of their sense and get involved in these kinds of affairs," the portrayal of these women as deluded victims overlaps with what appears to be a Korean male desire to discipline these women, or at least demand more moral behavior from them (like not engaging in "sex crimes" with foreigners).

This isn't to say that sex crimes aren't committed by some white men in Korea, or that some don't treat women (or girls) in incredibly callous ways with long-term consequences. They do. But they aren't the only ones, and to focus on them alone suggests another agenda is at work. Even worse is the fact that by portraying Korean women as devoid of agency, or as passive dupes ("Under white gaze, Korean girls [are] available and desperate." "The white man becomes the dream."), this not only echoes the xenophobic and misogynist responses of Korean nationalists, it also inadvertently reproduces the discourse of those being criticized in the first place. Is there really that great a difference between "Korean girls [are] available and desperate" and Hustler's claim that "a huge cadre of the country's females are...available to all comers"?

Making use of nationalist tropes without first unearthing the assumptions embedded within them can undermine the very argument one is trying to make, and leave one, as in this case, stuck in bed between neocolonial pricks and misogynist xenophobes.

Friday, March 10, 2017

Portrait of the ex-president as a young woman

And so President Park has been impeached and an election is to follow. Interesting times, to say the least. As I'm researching the crackdown on youth culture during the mid-1970s by her father (which resulted in over 50 musicians, film directors, actors, and other artists being banned from performing for life for smoking marijuana), the Park Geun-hye administration's massive artist blacklist certainly seemed familiar, though, of course, that was only the tip of the iceberg.

Oddly, it was just the other night I came across these images of Korea Herald articles from 1975 that include two articles about the now ex-president which might be of interest. One mentions her first press conference as first-lady, when she was a "shy" and "bashful" 23-year-old, where she speaks of her hopes for private life included wanting "to have a small house in the bright sunshine." As she put it, "At the sunny house, I would love to wait for friends, making tea and cake. And also it would be very nice to have enough time to read." There seems to be more than just a little whiff of the tragic in all of this.

Also, it's a bit eerie how she almost looks the same now as she did then.

Just in case these open in the photo viewer, the links to the images are here and here.

Tuesday, November 22, 2016

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.

Sunday, November 13, 2016

Seoul's colonial-era 'Defense-of-the-Nation Shrine'

Korea Expose published an interesting article about the forgotten history of the above set of steps in Haebangchon. Especially interesting was the interview with a local woman who remembers going to the Shinto shrine which used to be at the top of these stairs. The article risks confusing this shrine with another, however.

The actual Gyeongseong [Keijo, or Seoul] Shrine was built on the slopes of Namsan south of what is now Myeongdong Station in 1898; a few stone remains can be seen behind Sungui Women's University. It stood not so far from the original Government General Building (built in 1907 before moving, famously, to the large building that stood behind Gwanghwamun until 1996). Also nearby was the Japanese ambassador's residence (built in 1893, before another was built on what is now Yongsan Garrison in 1909, before the final one was built in 1937 on the location of today's Blue House). Photos of all of these can be seen here.

The more famous Chosen Shrine was built in 1925 and almost became the location of a new national assembly in the early 1960s; it now has an Ahn Jung-geun museum and other monuments to Korean independence fighters. There was also a military-related shrine on what is now Yongsan Garrison (I've never seen any photos of it) as well as other smaller ones throughout the Japanese parts of the city and throughout the country. These did not survive past 1945.

The shrine in the Korea Expose article was the 경성호국신사 (more photos can be seen here). If we follow Norma Field's translation of  호국신사 (in In the Realm of a Dying Emperor: A Portrait of Japan at Century's End), this would be the Gyeongseong Defense-of-the-Nation Shrine. She writes that in 1939 a directive stated that each prefecture in Japan was to have one official such shrine. The souls of dead soldiers were to be enshrined there, and if this sounds familiar, it might be because these were essentially local branches of Yasukuni Shrine. Seoul's was built in 1943, and I'm not sure if Korea had only one such shrine in Seoul, or more than one (though I'd lean towards just one). They would have been used not just for enshrinement of Koreans (who were only being used by the Japanese military in small numbers as volunteers or POW guards up until 1944) but for Japanese who were living in Korea.

At any rate, it would be a shame to see those stairs disappear, which the article states is a possibility. Surely if some of the secondary stairways related to the main shrine on Namsan (now standing near memorials to independence fighters) can be allowed to remain, these can as well.

Tuesday, October 25, 2016

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

The 2005 English Spectrum Incident

Part 1: English Spectrum and 'Ask The Playboy'
Part 2: The Kimchiland where it’s easy to sleep with women and make money
Part 3: English Spectrum shuts down as Anti-English Spectrum is created
Part 4: How to hunt foreign women
Part 5: Did the foreigners who denigrated Korean women throw a secret party?
Part 6: The 'Ask The Playboy' sexy costume party
Part 7: Stir over ‘lewd party’ involving foreigners and Korean women
Part 8: The 2003 post that tarred foreign English teachers as child molesters
Part 9: Netizens shocked by foreign instructor site introducing how to harass Korean children
Part 10: 'Recruit a Yankee strike force!'
Part 11: The Daum signature campaign: 'Let's kick out low quality foreign instructors!' 
Part 12: Movement to expel foreign teachers who denigrated Korean women
Part 13: "Middle school girls will do anything"
Part 14: Netizens propose 'Yankee counter strike force'
Part 15: Segye Ilbo interview with the women from the party, part 1
Part 16: Segye Ilbo interview with the women from the party, part 2
Part 17: Web messages draw Koreans’ wrath
Part 18: Thai female laborers and white English instructors
Part 19: KBS Morning Newstime: 'I can also suffer from the two faces of the internet'
Part 20: AES: Grandfather Dangun is wailing in his grave!
Part 21: 'Regret' over the scandal caused by confessions of foreign instructors
Part 22: "Korean men have no excuse"
Part 23: "Unfit foreign instructors should be a 'social issue'"
Part 24: Growing dispute over foreign English instructor qualifications
Part 25: 'Clamor' at foreigner English education site
Part 26: Foreign instructor: "I want to apologize"
Part 27: No putting brakes on 'Internet human rights violations'
Part 28: "They branded us as whores, yanggongju and pimps," part 1
Part 29: "They branded us as whores, yanggongju and pimps," part 2
Part 30: Don't Imagine
Part 31: Anti-English Spectrum founder's statement
Part 32: 'Foreign instructor' takes third place
Part 33: Art From Outsider's Point of View
Part 34: U.S. Embassy warns Americans of threats near colleges
Part 35: Internet real name system debated
Part 36: Dirty Korean women who have brought shame to the country?
Part 37: Invasion of Privacy Degrades Korean Women Twice Over
Part 38: 60 unqualified native speaking instructors hired for English instruction
Part 39: The rising tide of unqualified foreign instructors
Part 40: Warrant for Canadian English instructor who molested hagwon owner
Part 41: MBC Sisa Magazine 2580: "Korea is a paradise"
Part 42: Foreign instructor: "In two years I slept with 20 Korean women."
Part 43: Viewers shocked by shameless acts of unqualified foreign instructors.
Part 44: Warrant for the arrest of a man in his 30s for breaking into home of foreign instructors
Part 45: [Cultural criticism] Hongdae club day lewd party incident 
Part 46: Unqualified English instructors seen as major problem here
Part 47: Investigation of the realities of 'foreign instructors' methods for luring Korean women'
Part 48: Broadcast announcement: 'For foreign instructors, is Korea a paradise for women?'
Part 49: To white English instructors, the Republic of Korea is a paradise
Part 50: "If they're white, it's okay?" Lots of English instructor frauds... 
Part 51: A new message from Anti English Spectrum
Part 52: 
SBS, 'Is Korea their paradise? Blond hair blue eyes' part 1
Part 53: SBS, 'Is Korea their paradise? Blond hair blue eyes' part 2 
Part 54: SBS, 'Is Korea their paradise? Blond hair blue eyes' part 3
Part 55: Viewers of 'Realities of unfit foreign instructors' outraged
Part 56: Foreign instructor: "Korea is a cash and women dispenser."
Part 57: Frustration with low-standard foreign instructors: "Korea's pride damaged"
Part 55: Viewers of 'Realities of unfit foreign instructors' outraged
Part 56: Foreign instructor: "Korea is a cash and women dispenser."
Part 57: Frustration with low-standard foreign instructors: "Korea's pride damaged"
Part 58: Netizen anger over 'foreign instructor' broadcast
Part 63: Anti English Spectrum distributes pamphlets in Seoul taking advantage of the SBS broadcast, part 1

On February 20, the day after the SBS broadcast, Anti English Spectrum founder 'Bballyuchi (calpis)' posted the following message at the Anti English Spectrum cafe:
We got leaflets printed in Chungmuro and from the Danseongsa Building at Jongno 3-ga to the Seun Sangga [we distributed them] around the jewelry shopping area and to street vendors and passers by...
In the Jonggak area we distributed them even to the information desks of leading English hagwons...
We moved to Myeong-dong and carried out the campaign on the streets of Myeong-dong.

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

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

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

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

(Click here to see full sized image.)

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

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

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

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

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

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

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

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


Ladies and gentlemen!

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

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

The reverse side of the leaflet reads as follows:

(Click here to see full sized image.)

How to pick up young Korean girls: The real story

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

What was disclosed on the broadcast:

This is what was broadcast:

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

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

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

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


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

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

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

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

Not only did appearances on the TV shows (and other forms of publicity like the leaflets) attempt to increase the audience for their views, they also highlighted the existence of the group and attempted to recruit new members. As Anti English Spectrum's leader wrote in the post above at the site, "Who knows, there may even be a member here who joined after receiving one of the leaflets." As the leaflet reads:
Finally, ladies and gentlemen, let us tell you about ourselves, who made known these facts. We are Anti English Spectrum, we have 10,000 members and we are a movement to expel unqualified native speaking English instructors.

If you would like to learn more facts and cases of victimization, please visit Anti English Spectrum at Naver. Thank you!
In comparison to illegal foreign instructors ("Is Korea an ATM? Foreign instructors! How do you think about Korea?"), members of the site are "genuine" and presumably good-hearted people; hence the "genuinely-given donations" which made the leaflets possible.

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

Friday, October 07, 2016

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

As the Korea Herald reported, the National Human Rights Commission of Korea "has recommended the government stop its mandatory HIV testing of foreign English teachers."
The NHRCK decision refers to the compulsory medical testing of teachers on E-2 visas, which includes drug and HIV testing. A petition was originally brought to the NHRCK in July 2009 by an assistant teacher at an elementary school. The school had refused to renew her contract after she did not submit to the test.

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

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

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

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

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

"The NHRCK has taken a very strong position on protecting the rights of foreigners. But even further than that, the NHRCK has been very direct in insisting that the government ‘walks the talk’ when it comes to the international law standards that it professes to uphold and abide by but doesn’t always live up to. "
The NHRCK added that "it expected the Ministry of Justice to respond within 90 days of the report," while the Herald noted that the Ministry of Justice had as of yet made no comment.

The CERD decision was announced in May of last year; I posted about it here and here. As is noted in the decision below, the NHRCK, 7 years after the original petition in 2009, decided to act following government inaction after the CERD decision:
The Korean government (through the Ministry of Foreign Affairs, which is a competent ministry for CERD) responded that it would include contents regarding CERD opinions in the combined 17th, 18th, and 19th State Report. However, the report did not contain appropriate measures to address mandatory medical checkup required from E-2 visa holders, which was the subject matter of an individual communication. Against this backdrop, the NHRCK has come to review the policy of mandatory medical testing for foreign E-2 visa holders and the measures to facilitate effective implementation of the individual communications system.
It also mentions the E-2 Visa was first introduced in April 1993; I didn't have an exact date before.

Here is the full decision:

National Human Rights Commission of Korea
Standing Committee

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


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.


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