International Human Rights Process Finally Achieves Equal Treatment for Foreign Teachers in Korea: The Case of L.G. v. Republic of Korea
Benjamin K. Wagner
The United Nations Committee on the Elimination of Racial Discrimination (CERD), the monitoring body of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), gave its opinion in May 2015 on a case brought by a New Zealand national living and working in the Republic of Korea as a teacher of English as a foreign language.[1] The CERD found that the South Korean government had failed to live up to its obligations under the ICERD to act against racial discrimination, violating the foreign teacher’s right to work, her right to health, and her right to an effective remedy against discrimination.[2]
The case arose in 2009, after the teacher (identified as L.G.) had completed a one-year contract at a public elementary school. After receiving favorable evaluations from the school and the metropolitan office of education, L.G. was invited to renew her contract for a second year. She agreed, but then the education office informed the school of a new requirement: Foreign English teachers renewing contracts were now required to undergo mandatory in-country HIV tests and tests for illegal drugs. Individuals testing positive for HIV or drug use would be deported.
L.G. objected, explaining that 1) she had already cleared the same tests a year earlier on arriving in Korea as part of entrance requirements for foreign English teachers; 2) none of her Korean national co-workers had to be tested for HIV or drug use in order to teach English; and 3) even English teachers who were ethnic Koreans with foreign nationality like her own were exempt from these requirements.[3] Beyond being discriminatory, L.G. argued that mandatory HIV testing, especially when targeted at suspect groups like foreigners, only served to heighten the stigma around the disease in Korea which was already extreme. Moreover, mandatory testing and punitive measures for those testing positive discouraged voluntary testing among other groups of foreign residents and the general Korean population.[4] Such an approach was counterproductive in the fight against HIV and contrary to stated public health goals of the Korean government.
L.G. cited Korean public health law and national public health experts, all of whose work supported her claims. She further appealed to international treaties and guidelines, including the efforts of UN Secretary General Ban Ki Moon and Deputy High Commissioner for Human Rights Kyung-wha Kang, both South Korean nationals who at the time were advocating passionately on the world stage for countries to uphold their international obligations to fight against HIV by combating stigma and eliminating precisely the type of restrictions at issue in L.G.’s case.[5] Despite these appeals, the Korean government’s education office responded that the HIV and drug tests were necessary “as a means of checking the values and morality of foreign teachers of English” and insisted that L.G. submit to testing or be deported for refusing.[6]
The explanation as to why foreign English teachers had become morally suspect, requiring not only HIV and drug tests on arrival but annual re-tests, is complex.[7] South Koreans had enthusiastically supported the mass importation of foreign English teachers, mostly from the United States and Canada, with about 20,000 visas issued in 2009; indeed, the South Korean president had campaigned on putting a “native-speaking” English teacher in every classroom, the cornerstone of his globalization plans for education.[8] Metropolitan education offices printed up posters of blonde-haired, blue-eyed “native speakers,” telling parents how the government had delivered on its promises. Nevertheless, largely as a result of a campaign by an ethnic-nationalist group which sought to expel foreign English teachers from Korea by profiling them as child molesters, rapists, and drug users, the racial identity of white English-speaking teachers, which the government had promoted as guarantors of linguistic legitimacy, came to signify a predisposition for morally problematic behavior.[9]
Starting in 2005, this ethnic-nationalist group lobbied the government for mandatory HIV and drug tests and contributed numerous articles in the tabloid press profiling foreign teachers as sexual predators of Korean women and children.[10] The group’s lurid and sensational messaging added to its popularity and it began to receive support from some politicians, education officials, and media outlets, but still remained a fringe group of ethnic extremists with little direct influence on public policy. That changed dramatically in 2007, however, when a Canadian pedophile wanted by Interpol for crimes against children in Southeast Asia was found to be working as an English teacher in South Korea.[11]
The fears promoted by the group became national news, a full-blown moral panic ensued, and the group’s leader was invited by the government to help reshape immigration policy for foreign teachers.[12] In less than a week, mandatory HIV and drug tests were announced for the 20,000 foreign English teachers living in the country. The government promoted the tests as measures to round up and expel “illegal native-speaking English teachers” adopting the same language that the ethnic nationalist group had used in lobbying for the measures.[13]
The government claimed the measures would “ease the anxiety of citizens” but the increased media attention and comments by politicians, officials, and educators targeting white “native-speaking” English teachers as morally suspect and dangerous only served to further stoke fears.[14] Some politicians and educators even suggested that “illegal native speakers” were falsifying test results and entering the country.[15] By 2009, the education ministry announced repeat annual testing for teachers working in public schools as an extra precaution against “illegal native-speaking English teachers”. It was these re-tests that were challenged by L.G.
L.G.’s challenges began at the domestic level. She brought a case against the government through mandatory arbitration proceedings at the Korea Commercial Arbitration Board (KCAB) on the basis of her contract, arguing that the education office had imposed discriminatory requirements that were directly in conflict with Korean labor law, the Korean Constitution and international treaties that had been ratified and promulgated by the Republic of Korea. L.G. also brought a complaint to the National Human Rights Commission of Korea (NHRCK), which had the authority to find the race-based tests in violation of the National Human Rights Act of Korea.
The process of pursuing domestic remedies was difficult because on refusing to undergo a second round of testing L.G. was denied her work visa and forced to leave the country. However, she continued her challenges from abroad and after three years, having been denied a remedy by both KCAB and NHRCK, L.G. submitted her petition to CERD. Two years later CERD issued its opinion, which found not only the government in violation of its obligations under ICERD but also violations by KCAB and NHRCK, both of which had failed to provide a remedy against or even to address a clear case of prima facie racial discrimination.[16]
The CERD decision, and especially the accompanying international press highlighting the discriminatory HIV tests, had a powerful effect. Amidst a largely successful global campaign led by UNAIDS to eliminate HIV-related travel barriers, Korea stood out for its regressive approach.[17] The failure of the nation’s human rights commission to support L.G.’s human rights made the case even more noteworthy. Broader attention was drawn to the issue of HIV testing of foreigners, including the HIV testing requirement for recipients of Korean government scholarships and the decision by some universities to remove links to those scholarships.[18] Consequently, NHRCK reversed its earlier dismissal of L.G.’s complaint and in 2016 issued a strong opinion condemning the mandatory HIV tests as discriminatory and counterproductive in the fight against HIV.[19] It urged the Korean government to eliminate the tests immediately which it finally did in 2017.[20] Importantly, the well-publicized challenge also brought up issues of HIV discrimination against Koreans, a population that faced even more discrimination and stigmatization than foreigners.[21]
In summary, there was redress and accountability, but no remedy. The Korean government was willing to change policy but L.G. had to fight another court battle to obtain an individual remedy, which she won in 2019 when the Seoul District Court, in accord with CERD’s recommendation, finally awarded her compensation of $27,000 for the wrongful termination of her employment.[22]
While in many ways the case showed the South Korean government as recalcitrant and ethnocentric, paradoxically, it was the same government’s sincere commitment to international human rights, including the commitment to abolish all forms of racial discrimination, that made L.G.’s legal challenge possible and a remedy ultimately forthcoming.[23]
Benjamin K. Wagner is an American human rights attorney. His work with teachers in Korea has included international litigation at CERD and the UN Human Rights Committee. Email: benjamin.wagner@pm.me
References
[1] L.G. v. Republic of Korea, Comm. No. 51/2012, CERD/C/86/D/51/2012, Judgment of May 1, 2015, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/86/D/51/2012&Lang=en (hereinafter L.G. v. ROK);
[2] Ibid. para. 7.3-8.
[3] Ibid., para. 2.2.
[4] J. Keralis, “At the Nexus: How HIV-Related Immigration Policies Affect Foreign Nationals and Citizens in South Korea,” Health and Human Rights Journal, 2017, https://www.hhrjournal.org/2017/12/at-the-nexus-how-hiv-related-immigration-policies-affect-foreign-nationals-and-citizens-in-south-korea/;
[5] UN Secretary General Ban Ki-Moon, “Remarks at General Assembly High-Level Meeting on HIV/AIDS,” Jun. 10, 2008, https://www.un.org/sg/en/content/sg/speeches/2008-06-10/remarks-general-assembly-high-level-meeting-hivaids; “UN chief asks SKorea to lift HIV test requirement,” AP News, Nov. 16, 2010, https://www.taiwannews.com.tw/en/news/1434208; Deputy High Commissioner for Human Rights Kyung-wha Kang, “Inequity, Vulnerability and AIDS,” 9th International Congress on AIDS in Asia and the Pacific, 11 Aug. 11, 2009, https://newsarchive.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=30&LangID=E
[6] See note 1, L.G. v. ROK, para. 7.4.
[7] See B. Wagner, M. VanVolkenburg, “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, Vol. 11, 179-245, June 2012, https://s-space.snu.ac.kr/bitstream/10371/85184/1/03_BK%20Wagner_OK.pdf
[8] Ibid, p. 228-229.
[9] Ibid, Part II.
[10] Ibid. Compare historic instances of attempts to link race, sexuality and disease, S. Bharat, “Racism and HIV/AIDS,” in the Office of the United Nations High Commissioner for Human Rights’ “Dimensions of Racism,” HR/PUB/05/4, 2005; C. McClain, “Of Medicine, Race and American Law: The Bubonic Plague Outbreak of 1900,” 13 Law & Soc. Inquiry 447, 453 (1988); D. E. Bernstein, “Lochner, Parity, and the Chinese Laundry Cases,” 41 Wm. & Mary L. Rev. 211, 226 (1999); S. Auerbach, “Race, Law, and “‘The Chinese Puzzle’ in Imperial Britain” (2009); C. J. Mosher, “Discrimination and Denial: Systemic Racism in Ontario’s Legal and Criminal Justice Systems,” 1892-1962 139-74 (1998); S. C. Miller, “Unwelcome Immigrant: American Image of the Chinese” (1969).
[11] Ibid, Part II.
[12] Ibid, p. 191, FN 48.
[13] Ibid, p. 190, 200-201.
[14] Ibid. See also “CERD General Recommendation 30 on Discrimination Against Non Citizens,” para. 12, 2002, https://www.refworld.org/docid/45139e084.html
[15] Ibid, p. 200.
[16] See note 1, L.G. v. ROK, para. 7.3.
[17] J. Amon and K. Todrys, “Fear of Foreigners: HIV-related restrictions on entry, stay, and residence,” Journal of the International AIDS Society, 2008, https://onlinelibrary.wiley.com/doi/full/10.1186/1758-2652-11-8
[18] S. Power, “US colleges cut ties with scholarships that ban HIV-positive applicants,” The Guardian, May 21, 2016, https://www.theguardian.com/us-news/2016/may/21/us-colleges-cut-ties-south-korea-anti-hiv-scholarships
[19] NHRCK 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,” Sept. 8, 2016, https://drive.google.com/file/d/0B4aFHAB_03v5UEI4RWZXRHQ4NTA/view?usp=sharing
[20] “S. Korea removes mandatory HIV test for foreign English teachers,” Yonhap Press, July 8, 2017, https://en.yna.co.kr/view/AEN20170708002700315
[21] B. Wagner and M. Kwon, “South Korean patients have nowhere to go as world gathers to discuss HIV/AIDS,” https://medium.com/@benkwagner/south-korean-patients-have-nowhere-to-go-as-world-gathers-to-discuss-hiv-aids-cdaece9e64c9; Korean Network of People Living with HIV/AIDS (KNP+) and Solidarity for HIV/AIDS Human Rights (Nanuri+), “Statement on the occasion of the UN General Assembly 2016 High-Level Meeting on Ending AIDS, June 8–10, 2016,” https://drive.google.com/file/d/0B4aFHAB_03v5cXAwNWNyRkpTaWM/view?usp=sharing
[22] See note 1, L.G. v. ROK, para. 9; “Court orders state to compensate New Zealander over mandatory HIV test policy,” Yonhap News, Nov. 6, 2019, https://en.yna.co.kr/view/AEN20191106005400315
[23] B. Wagner, “Scrutinizing Rules for Foreigners in Korea: How Much Discrimination is Reasonable?” Kyung Hee University Law School Journal of Law, Vol. 44, No. 3, 2009, https://www.academia.edu/42803756/Scrutinizing_Rules_for_Foreigners_in_Korea_How_Much_Discrimination_is_Reasonable; See also B. Wagner, “South Korea’s Courts Are Ready to Address and Remedy Racial Discrimination (but more Korean lawyers must be willing to bring cases),” https://medium.com/@benkwagner/it-s-high-time-that-south-korean-courts-recognize-the-multiethnic-character-of-contemporary-korean-bf6ff142a49e