NHRCK Report 2

Kyung Hee University School of Law
1 Hoegi-dong, Dongdaemun-gu
Seoul, Korea 130-701
Phone: +82-2-961-0418
Working Paper, May 2009

Distributed for educational purposes
DISCRIMINATION AGAINST NON-CITIZENS

IN THE REPUBLIC OF KOREA IN THE CONTEXT OF
THE E-2 FOREIGN LANGUAGE TEACHING VISA
Benjamin K. Wagner
Copyright © 2009, by Benjamin K. Wagner. This article is available for educational purposes
only. This article is a working paper, which represents ongoing research and compilations of
various materials. No part of this publication may be reproduced without the permission of
the author. To request permission to reproduce this article, please contact the author at
khu.lawschool@gmail.com.
Benjamin K. Wagner Draft—Not for Quotation or Citation Without the Permission of the Author
1. An Introduction to the E-2 Visa Policy
A. New requirements for the E-2 visa are introduced through a Korea
Immigration Service policy memorandum affecting nearly 20,000 non-citizens residing
in Korea.
The “Foreign Language teaching (E-2)” visa is for non-citizens working in Korea as
“language instructor[s] at foreign language institutions or educational facilities (primary
school and above).”1
Nationality 2005 2006 2007 2008

U.S.A. 3,951 5,372 6,989 8,890
Canada 4,598 4,870 5,263 5,029
U.K. 975 1,367 1,697 1,673
South Africa 294 451 695 971
Australia 582 679 665 646
New Zealand 630 701 705 643
Ireland 305 332 350 322
Others2 1,104 1,229 1,357 1201
TOTAL 12,439 15,001 17,721 19,375
(Table 1) Number of E-2 Visa Holders by Nationality from 2005 through September 2008 (Korea Immigration Service)3
As of September 2008, there were 19,375 E-2 visa holders in Korea. Ninety percent
of E-2 visa holders are teachers of English, representing seven nations whose native language
is English.4 Of these nations, Americans hold the most E-2 visas (40%), followed by
Canadians (30%), Britons (10%), South Africans (3%), Australians (3%), New Zealanders
(3%), and Irish (2%).
In November 2007, the Ministry of Justice (“MOJ”) introduced a policy memorandum
1
See “Foreign Language Instructor (E-2) . . . Application Eligibility.” Available at Korea Immigration website,
http://www.hikorea.go.kr/pt/InfoDetailR_en.pt?categoryId=2&parentId=382&catSeq=385&showMenuId=374&
visaId=E2 Of particular importance, the Korea Immigration Service (“KIS”) does not keep statistics on the
number of E-2 teachers who teach children. While the requirements for E-2 teachers were introduced to protect
children, many E-2 teachers work in positions where they do not teach children.
2
The E-2 visa is also available for teachers of foreign languages other than English. Teachers of foreign
languages other than English account for less than ten percent of E-2 visa holders.
3
Korea Immigration Service, International Cooperation Division, Ministry of Justice. Included in the Annex.
4
The remaining 10% of E-2 visa holders not teaching English (1,201 individuals as of September 2008) have
faced discriminatory treatment despite not being “foreign English teachers,” the target group of the
requirements.
2
entitled “원어민 회화지도 (E-2) 사증제도 개선 안내” (“Policy Memo”).5 On December
10, 2007, the Residence Policy Division of the Korea Immigration Service released an
English version of the policy memo entitled “New Changes on the E2 Teaching Visa Holders
in Korea.”6 This document gives the reasons for the new E-2 visa requirements. In the
first section, entitled “Background of the Changed Program,” the policy memo states the
changes have made because of “[s]erious social outcry [concerning] unqualified E2 teaching
visa holders.” This “social outcry,” the policy memo explains, was created by:
News media coverage about those unqualified E2 teaching visa holders.

For example, Mr. Christopher Paul Neil,7 the serial child sex offender,
was reported by KBS on Oct.17th, 2007 and the report came out about
the holders of fraudulent diplomas, drug using, etc. on September 5th,
2007.
For the stated purpose of “protect[ing] children and young students from . . . criminal
offenders and fraudulent diploma holders,” the new E-2 visa policy requires 1) an “HIV test”
and 2) a “TBPE diagnosis”8 for illegal drug use at “National or privately-run hospitals and/or
public health centers” in Korea (medical tests done outside of Korea are not accepted). The
E-2 policy further requires foreign teachers to 3) submit criminal background reports from
their home countries and to 4) provide verification of their academic credentials.
B. The introduction of the E-2 visa policy was an extra-legal and discriminatory
crackdown designed to calm a xenophobic public.
The E-2 visa policy was not implemented in order to achieve the legitimate aim of
“protect[ing] children and young students,” instead it was designed to achieve the symbolic
5
원어민 회화지도 (E-2) 사증제도 개선 안내, 법무부, 2007. 11. Included in the Annex.
6
“New Changes on the E2 Teaching Visa Holders in Korea,” Residence Policy Division, Korea Immigration
Service, December 10th, 2007 (Hereinafter “Policy Memo”). Included in the Annex, also available at
http://home.windstream.net/ssheiko/e2_changes_en.pdf
7
Neil’s arrest and its effect on the revised E-2 visa requirements are discussed in section 1(D) infra.
See further http://en.wikipedia.org/wiki/Christopher_Paul_Neil
8
The Policy Memo supra note 6 explains that E-2 visa holders require a “TBPE diagnosis . . . about drug use.”
TBPE refers to a tetrabromophenolphtalein ethyl ester indicator test for the presence of ‘hard drugs’ such as
heroin, amphetamine, methamphetamine, and MDMA. Cannabis is not tested for under the E-2 requirements.
For more information on the TBPE, see “A simple device of the dry tetrabromophenolphthalein ethyl ester
reagent strip for the detection of methamphetamine,” Myung Ja Choi, Eun Young Song, Seungki Kim,
Jeongeun Choi, Dong-Seok Lho and Jongsei Park, Pharmaceutical Society of Korea, (Volume 16, Number 3,
1993). Available at http://www.springerlink.com/content/n125p5406785x231/
3
aim of calming a xenophobic public panicked by news of dangerous foreign English teachers.
As will be explained, irresponsible media reports (many of them generated by public
officials) of “dangerous foreign English teachers” had been circulating in Korean society
prior to the introduction of the E-2 visa policy.9 When news broke of the arrest of English
teacher Christopher Paul Neil in Thailand, a tipping point was achieved and panic over
foreign English teachers in Korea reached a fever pitch. The E-2 visa policy memo
specifically notes the news report of “Christopher Paul Neil . . . by KBS on Oct.17th, 2007”
explaining that “[n]ews media coverage about those unqualified E2 teaching visa holders”
had created “[s]erious social outcry.” By October 24, 2007, one week after the KBS
broadcast, 12 members of the National Assembly introduced Bill No. 7642 to establish “the
legal basis to require that foreigners applying for an employment visa submit a criminal
background check and a health certificate.”10 When this bill failed to establish “the legal
basis” to implement these requirements, the decision was made to establish an immediate
program to carry out, by extra-legal means, what Bill No.7642 had attempted to legislate.
This program came in the form of a “policy memo” (without the proper status of law) created
by the Residence Policy Division of the Korea Immigration Service in November 2007 and
entitled “원어민회화지도 (E-2) 사증제도개선안내.”
The E-2 visa policy is essentially a countrywide search of all suspicious foreign resi-
dents. The first stage involves a roundup of the suspects, the second stage involves body
searches for drugs and diseases, and the final stage involves deportation of the undesirables.
At each stage various human rights are violated. The roundup stage violates the right to the
9
See “A brief history of the scapegoating of foreign English teachers in the Korean media,” for a comprehen-
sive examination of over a decade of such reports. Available at http://populargusts.blogspot.com/2007/09/brief-
history-of-scapegoating-english.html
10
See 出入國管理法 일부개정법률안 (신학용의원 대표발의), No. 7642 (October 24, 2007). Included in the
Annex
4
presumption of innocence;11 moreover, it involves a selection process that implicates the
right to equality before the law and non-discriminatory treatment,12 both on the basis of
citizenship and immigration status. The search stage violates the right to privacy.13 The
final stage, which involves the deportation of persons living with HIV/AIDS, violates the
right to non-discrimination on the grounds of medical history.14 Furthermore, the entire
process takes place in an extra-legal context in violation of constitutional procedure and the
rule of law principle.
In addition to violating the rule of law principle of limiting rights by law only (as re-
quired by Article 37(2) of the Constitution), the E-2 visa policy also violates international
treaties to which Korea is a party, such as the International Convention on Civil and Political
Rights (“ICCPR”).15 The ICCPR is of additional Constitutional concern in the context of
extra-legal measures applied to aliens residing within the Republic of Korea as Article 6(2)
states that “[t]he status of aliens shall be guaranteed as prescribed by international law and
11
See Article 27(4) of the Constitution of the Republic of Korea. Available at
http://www.ccourt.go.kr/home/english/welcome/republic.jsp Article 14 of the International Covenant on Civil
and Political Rights (hereinafter “ICCPR”) (note that the ROK has declared this Article 14 “to be in conformity
with the provisions of the local laws including the Constitution of the Republic of Korea). Available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm Convention on the Elimination of All Forms of Racial
Discrimination General Recommendation 31 (on the prevention of racial discrimination in the administration
and functioning of the criminal justice system) (hereinafter “CERD General Recommendation 31”), See UN
Committee on the Elimination of Racial Discrimination (CERD), Report of the UN Committee on the
Elimination of Racial Discrimination: Sixty-sixth Session (21 February-11 March 2005) and Sixty-seventh
Session (2-19 August 2005), 3 October 2005; page 106, para. 29. A/60/18. Available at:
http://www.unhcr.org/refworld/docid/43f30f8c0.html
12
See Article 11(1) of the Constitution of the Republic of Korea; Article 26 of the ICCPR supra note 11; UN
Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation XXX on
Discrimination Against Non Citizens, 1 October 2002; page 3, para. 12 (hereinafter “CERD, General
Recommendation No. 30”). Available at: http://www.unhcr.org/refworld/docid/45139e084.html
13
See Article 17 of the Constitution of the Republic of Korea; Article 17 of the ICCPR; CERD, General
Recommendation 31 (on the prevention of racial discrimination in the administration and functioning of the
criminal justice system) (discussing “searches which are in reality based solely on the physical appearance of a
person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which
exposes him or her to greater suspicion.”) supra note 11.
14
See Article 11(1) of the Constitution of the Republic of Korea supra note 11; Article 26 of the ICCPR infra
note 104; See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14:
The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000; page 7, para.
18. E/C.12/2000/4. (Emphasis added, internal parenthesis removed). Available at:
http://www.unhcr.org/refworld/docid/4538838d0.html
See “Foreign English teachers and HIV/AIDS” section 2(G) infra for a detailed discussion of the right to non-
discrimination on the grounds of medical history.
15
ICCPR status of ratification. Available at http://www2.ohchr.org/english/law/ccpr-ratify.htm
5
treaties.”16 The rule of law principle in the context of the ICCPR is addressed in the
Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights.17 The Siracusa Principles, in line with Article 37(2),
explain that “[n]o limitation on the exercise of human rights shall be made unless provided
for by national law of general application which is consistent with the [ICCPR] and is in
force at the time the limitation is applied.”18 The E-2 visa policy was not “provided for by
national law of general application” or “in force at the time the limitation [was] applied.”
As will be explained, the government may enact laws that require restrictions on the
freedoms and rights of individuals when in pursuit of a legitimate public welfare aim such as
“protect[ing] children and young students.” However, the government cannot simply put in
place whatever means it chooses to achieve such an aim, and arbitrarily restrict the rights of
individuals in the process. The Constitution demands that a law be enacted before the free-
doms and rights of individuals can be restricted19 (a requirement that was ignored with the
imposition of the E-2 visa policy).20 Further, even if a law is enacted, the government must
16
The Constitution of the Republic of Korea, Article 6(2) supra note 11.
17
UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in
the International Covenant on Civil and Political Rights, 28 September 1984. E/CN.4/1985/4. Available at:
http://www.unhcr.org/refworld/docid/4672bc122.html
18
Id.
19
“The freedoms and rights of citizens [and non-citizens] may be restricted by Act only when necessary for
national security, the maintenance of law and order or for public welfare. Even when such restriction is
imposed, no essential aspect of the freedom or right shall be violated” Article 37(2) of the Constitution of the
Republic of Korea supra note 11. (Emphasis added). Non-citizens residing within ROK are protected under the
Constitution of the Republic of Korea and are within the purview of this Article. 2004 Hun-Ma 670, infra note
156. See section 2(D) below for further discussion.
20
Rule of law is the most fundamental of aspect of a constitutional democracy. Simply stated, it means the
exercise of governmental power is constrained by the law. In the case of the E-2 visa policy, however, the Korea
Immigration Service has exercised unlimited discretionary power over foreigners with no concern as to whether
their actions are based in law or not. After it was pointed out to the Ministry of Justice (“MOJ”) (through
complaints filed with the NHRCK) that the E-2 visa requirements had been imposed on foreigners for more than
a year without the status of law, the MOJ offered the following comment to the press: “[A]lthough there is no
actual law that mandates foreigners to undergo medical and criminal record checks, the ministry’s ‘policy memo
has enough legal authority to implement the visa requirement as it was created by the Justice Ministry on the
government’s behalf.’” In other words, the Justice Ministry is of the opinion that any particular policy it decides
to impose – whether or not a law exists granting it authority – will have “enough legal authority.” This
perspective provides the quintessential example of unbridled discretionary power, which is in direct violation of
the Constitution and the rule of law principle. See “Visa rules for foreign English teachers challenged,”
JoongAng Daily, February 5, 2009. Available at http://joongangdaily.joins.com/article/view.asp?aid=2900646
(Emphasis added).
6
do more than pay mere lip service to a legitimate aim (such as “protect[ing] children and
young students) when it puts its program in place. The legal means must be applied pursu-
ant to that legitimate aim. The “proportionality principle” (비례의원칙) 21 of Korean
Constitutional law requires the means applied by the government (requiring the restriction of
rights) to be carefully designed to work toward achieving its legitimate aim. In short, there
must be a rational link between the legitimate aim and the means applied to get there. In the
case of the E-2 visa policy, however, the prescribed means are so irrationally related to the
stated aim as to require a presumption of bad faith and ulterior motive (such as discrimina-
tion) on the part of the government.
The government’s interest in achieving the purely symbolic aim of calming a xeno-
phobic public (which the government itself had panicked through irresponsible statements
made to the media) is evidenced by the failure of the E-2 visa policy to achieve its stated
aims. The E-2 visa policy requirements were designed to “protect children and young stu-
dents,” yet these protective measures are not applied to the majority of teachers who teach
children (under-inclusive)22 and instead are often applied to teachers who do not teach chil-
dren at all (over-inclusive). Moreover, the E-2 visa policy introduced “criminal background
checks” that allowed individuals with criminal histories to qualify as E-2 visa holders,23
21
See 권영성, 헌법원론 338-40 (4th. ed. 2001). See also 전광석,한국헌법론 256-57 (5th. ed. 2009).
22
As will be explained in section 1(F) infra, the severe abuse that Korean students suffer from Korean teachers
and the impunity these teachers continue to enjoy demonstrates the serious need for measures designed to
“protect children and young students” and provides strong evidence of the extreme under-inclusiveness of the
government’s policy.
23
On January 3, 2008, Kookmin University law professor Sean Hayes wrote an article in the Korea Times
entitled “Immigration Logic.” Professor Hayes criticized the logic of immigration officials who had designed an
E-2 visa criminal background check system that allows criminals to obtain E-2 visas. Professor Hayes’s article
was in response to an earlier Korea Times article by an MOJ official. In his December 2007 article, the official
explained that Americans could obtain “local police station” criminal background checks to satisfy the E-2 visa
requirement. In response, Professor Hayes pointed out that this would allow a “smarter than immigration
‘pedophile’ [to] simply request a record check from a town police department in a state where he has no
criminal record and [he] would then receive a clean ‘no record’ statement.” Thus, by at least January 2008, the
KIS was well aware that the E-2 visa criminal background check system they had created would not prevent
American criminals from obtaining an E-2 visa and teaching children in Korea. Nevertheless, they made no
improvements to the system and issued 8,890 E-2 visas to Americans in 2008. The E-2 visa criminal
background check system continues to accept “local police station” records from any jurisdiction. See
“Immigration Logic,” Korea Times, January 3, 2008.
7
instituted national “drug tests” that tested teachers for drugs where there had been no arrests
for these drugs and discontinued tests for drugs where there had been arrests;24 and finally,
that set up “health checks” in contravention of existing laws25 “prohibit[ing] the entry of []
foreigner[s] . . . carrying an epidemic disease [or] narcotic addicts,”26 instead conducting in-
country tests of foreigners “after entering Korea.”27
The E-2 visa policy was never implemented to achieve any of its stated goals; rather,
it was designed as a “show” to pacify the Korean public by providing an illusion of protection
through a discriminatory and extra-legal crackdown severely violating the human rights of
non-citizens residents.28
Available at http://www.koreatimes.co.kr/www/news/opinon/2009/04/233_16652.html
See “Misunderstanding of New E-2 Visa,” Korea Times, December 26, 2007.
Available at
http://www.koreatimes.co.kr/www/news/opinon/opi_view.asp?newsIdx=16182&categoryCode=160
24
See “Foreign English teachers and drug crimes” infra section 2(E).
25
The E-2 visa policy memo requires HIV tests to be conducted within 90 days after entry (“귀하는 대한민국
입국후 90일이내. . .건강진단서를 제출해야 합니다.” 원어민 회화지도 (E-2) 사증제도 개선 안내, 법무부,
2007. 11. An examination of the relevant sections of Korea’s Prevention of AIDS Act shows that the E-2 visa
HIV tests fail to uphold the purpose of “protect[ing] the national health” as understood by that Act. While the
Act itself is clearly illegitimate and discriminatory, Article 1 (Purpose) of the Prevention of AIDS Act explains
the purpose of laws dealing with HIV/AIDS is “to contribute to the protection of national health by providing
necessary matters for the . . . segregation and control of the AIDS virus-infected.” (Prevention of AIDS Act, No.
7451, March 31, 2005. (Emphasis added.) Again, however misguided this Act may be, the E-2 visa policy of
allowing “AIDS virus-infected” foreigners to enter the Republic of Korea is in direct contravention of its
explicit purpose. Article 8(3) of the Act explains that the proper HIV testing procedure for long-term sojourning
foreigners designated as HIV health risks is for them to “present to the Minister of Health and Welfare written
confirmation of a HIV-negative result . . .before entering the country.” The Prevention of AIDS Act, pursuant to
its severely misguided purpose of excluding people living with HIV/AIDS from Korean society, rationally
requires at risk foreigners to take pre-departure HIV tests in their home countries and show they are HIV-
negative before they are allowed to enter Korea. It is clear that, therefore, that the aim of the E-2 visa policy was
not to “protect the national health” as that phrase is understood (or misunderstood) at law in Korea, but to
provide Koreans with a false sense of security by conducting a nationwide search for foreigners with HIV/AIDS.
See “Foreign English teachers and HIV/AIDS” infra section 2(G) for a detailed discussion of the right to non-
discrimination on the grounds of medical history.
26
Article 11(1)1, Immigration Control Act, Act No. 1289, March 5, 1963.
27
The E-2 visa policy requires “health examination records upon applying to be a registered foreigner after
[within three months] entering Korea” and “[t]hose that are found to have drug intake, AIDS or other disease
[sic] the law defines as serious contagious disease [sic] in their health examination will have their stay cancelled
and be deported.” (Emphasis added). See Foreign Language teaching (E-2) > Revision of Foreign Language
Instructor (E-2) visa issuance requirements> Required submission of self-health statement. (Emphasis added).
Available at
http://www.hikorea.go.kr/pt/InfoDetailR_en.pt?categoryId=2&parentId=382&catSeq=385&showMenuId=374&
visaId=E2
28
Further indication of the E-2 visa policy’s symbolic aim of calming a panicked public is provided by the
MOJ’s March 2007 press release entitled, “ There is no longer any place for illegal native speakers,” which
explains: “thanks to measures introduced on native English teachers by the Ministry of Justice, the anxiety of
8
C. The xenophobic origins of the E-2 visa policy.
In beginning our inquiry, the following words of counsel by Irene Khan, the
Secretary-General of Amnesty International, deserve special attention:
[W]hen we feel threatened – whether about our physical well-being or

our social identity – that is precisely when we must make sure that the
outsider among us, the foreigner does not suffer. It is all too easy to
feed people’s fear that the threat comes from abroad, to create a
climate of suspicion, mistrust, xenophobia, and racism.29
An article in the Chosun Ilbo, written by Korean police officer Ji Yeong-hwan, shows us the
state of affairs in Korea where Ms. Khan’s advice has not been observed:
There are nearly one million foreigners in the Republic of Korea and
last year there was an 18% jump in international marriages. This
human, material and cultural exchange is a stepping stone to the wider
world, but it also has ill effects on national development by creating
threats to public security and social insecurity as illegal migrants and
foreign criminals enter the country . . . It’s not just native English
teachers without degrees; throughout the entire society, foreigner crime
is surpassing the imagination.30
As will be shown, many Koreans have been persuaded by comments like those of Officer Ji
and others that a threat to both their physical well-being and social identity is coming from
abroad. As a result, foreigners living and working in Korea have had to endure a climate of
suspicion, mistrust, and xenophobia.
In recent years, foreign English teachers have been singled out for perhaps the
greatest scrutiny and suspicion. Almost any discussion of “bad foreigners” in Korean
society leads to a discussion of foreign English teachers. A recent example was provided by
citizens over ineligible foreign English teachers is expected to be alleviated.” (Emphasis added). “불법 원어민
회화강사 더 이상 설 곳 없다,” Ministry of Justice, March 15, 2007. Available at http://www.moj.go.kr/
29
See UN Sub-Commission on the Promotion and Protection of Human Rights, rights of non-citizens; Final
report of the Special Rapporteur, Mr. David Weissbrodt, submitted in accordance with Sub-Commission
decision 2000/103,Commission resolution 2000/104 and Economic and Social Council decision 2000/283
Addendum Examples of practices in regard to non-citizens, 26 May 2003; page 7, para. 13.
E/CN.4/Sub.2/2003/23/Add.3 Available at: http://www.unhcr.org/refworld/docid/3f461536c.html
30
See “외국인 범죄 급증,” Chosun Ilbo, October 18, 2007. Available at
http://news.chosun.com/site/data/html_dir/2007/10/18/2007101801300.html (the article includes a cartoon
image of a little Korean girl running from three menacing looking foreigners who are chasing her with knives).
(Emphasis added). For an English translation see http://www.rjkoehler.com/2007/10/19/foreign-crime-on-the-
rise-or-so-warns-the-chosun-ilbo/
9
a spokesman for the celebrity Park Cheol, whose bitter divorce with actress Ok So-ri has
captured the public attention. After explaining that rumors of Park’s wife having had an
affair with a foreign hotel chef were true, the spokesman went on to say:
The issues with some problematic foreigners who reside in Korea, like
some foreign English teachers, come from their failure to understand
cultural differences and their thinking they can live however they want
in Korea.31
The fact that “foreign English teachers” had nothing to do with Park’s divorce is a matter of
indifference to the spokesman. Foreign English teachers provide the archetype of the
“problematic foreigner.”
The Korean media, and consequently the public consciousness, is saturated with
stories about foreign English teachers. These stories focus on the same themes of illicit sex,
drugs, and danger to the community and posit the following sensationalist claims as truths:
• Foreign English teachers are more likely to be sexual predators and criminals.
• Foreign English teachers are more likely to use illegal drugs.
• Foreign English teachers are more likely to have AIDS and– because of their
promiscuity, criminality, and drug use – they are more likely to spread the disease.
Many statements supporting these falsehoods can be found expressed in the media.
Moreover, the statements that appear are not just the sentiments of private individuals or
fringe groups expressed on blogs or websites (although there are examples of these as well).32
The statements are from well-respected public figures, government officials, police officers
and educators made in the mainstream press for public consumption. Some examples
include:
31
See “박철 측’ 외국인이라 그럴 수 있다니, 당치도 않다,” available at
http://www.cbs.co.kr/Nocut/Show.asp?IDX=645133
32
See e.g. Anti-English Spectrum website. Available at http://cafe.naver.com/englishspectrum.cafe
See also, e.g. A pornographic “comic book” depiction of foreign English teachers as sexual predators. While
these images are highly insulting to foreigners, they are perhaps even more so toward Korean women, who are
often referred to as “걸레”(sluts) on anti-foreign English teachers websites (such as Anti-English Spectrum) for
having relationships with foreign males.
Available at http://blog.naver.com/summerpine92?Redirect=Log&logNo=30047232473
See also, e.g. A website showing foreign English teachers as HIV/AIDS threats to Korean society. Available at
http://blog.daum.net/gomdolli7/5715182
See also, e.g. Interview with Lee Eun-ung, Director of the Anti-English Spectrum. Available at
http://www.seoul.co.kr/news/newsView.php?id=20081114500003
For an English translation of interview see http://koreabeat.com/?p=2994
10
• In November 2007, the Korea Herald quoted “an official at the Ministry of Jus-
tice” as saying, “Drug use and other criminal activities carried out by foreign Eng-
lish teachers have been a social issue for some time, and have built up to danger-
ous levels in recent years. That is why we are implementing changes now.”33
• In December 2007, the U.K. Guardian Weekly quoted the Ministry of Justice ex-
plaining that the E-2 visa requirements are intended to “prevent native English
teachers who disrupt social order with taking drugs, committing sexual harass-
ment and alcohol intoxication.”34
• In September 2007, No Cut News published an article entitled “Korea is a ‘Per-

verted Paradise’ for Foreign English Teachers.” A representative of the Foreign
Affairs Division of the Seoul Police Department was quoted as saying that
“American and Canadian English teachers think Korea is a land of opportunity
[and a] perverted paradise [because] the majority of them find it easy to seduce
Korean women and do drugs with them.”35
• In January 2008, Dailian News, quoted an Incheon Yeon-su Police Department

representative stating, “students who have traveled abroad, and club employees
who have drug use experience, are purchasing and injecting drugs by contacting
foreign English teachers.” The article continues by explaining “sex crimes com-
mitted by foreign English teachers, who are high on drugs, are disrupting society,
so [the Police] are extending their investigation.”36
• In June 2007, the English Chosun published an article entitled “Prosecutors Con-
cerned by Sharp Increase in New Narcotics.” The article explains “[t]here was a
huge increase in new types of narcotics smuggled into Korea last year.” The arti-
cle then lists “2,995 pills [of] amphetamine . . . 151 pills of methaqualone . . . 72
Ecstasy pills or other forms of MDMA” and “30 kg of cocaine and philopon.”
The article goes on to explain that “[o]f the 116 foreigners caught with drugs last
year, 46 or 39.7 percent were Americans, making up the largest group.” Finally
the article links the “sharp increase” to foreign English teachers, explaining that
“Prosecutors believe the rising number of American drug offenders correlates to a
rising number of English teachers coming to Korea, prompted by the recent trend
for English education.”37
33
See “E-2 visa holders to need medical, criminal checks – starting in December 2007,” Korea Herald,
November 7, 2007. (Emphasis added). Available at
http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2007/11/07/200711070060.asp
34
See “Proof of character demanded before entry,” Guardian, December 14, 2007. (Emphasis added). Available
at http://www.guardian.co.uk/education/2007/dec/14/tefl
35
See “외국인 영어강사에게 한국은 ‘타락천국”’ (Korea is a ‘Perverted Paradise’ for Foreign English
Teachers), September 5, 2007. Available at
http://news.naver.com/hotissue/ranking_read.php?section_id=102&ranking_type=popular_day&office_id=079
&article_id=0000185857&date=20070905&seq=1 (Emphasis added).
See also, e.g. “[긴급현장르포下 홍대앞, 그 욕망의 해방구] `원나잇스탠드` 유혹 외국인 盛市,” available at
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=016&aid=0000181069
See also, e.g. “[현장24] 홍대앞 주말밤 외국인 추태 경찰도 구경만,” available at
http://news.naver.com/main/read.nhn?mode=LS2D&mid=sec&sid1=102&sid2=257&oid=052&aid=000014074
7
36
See “빌라에서 대마초 재배해 판매” Dailian News, January 9, 2008. (Emphasis added). Available at
http://www.dailian.co.kr/news/n_view.html?id=97122&sc=naver&kind=menu_code&keys=25
37
See “Prosecutors Concerned by Sharp Increase in New Narcotics,” English Chosun, June 7, 2007. (Emphasis
11
• In October 2008, ABC News published an article, prepared by Korea desk corre-
spondent Joohee Cho, entitled “English Teachers Bring Drugs to South Korea.”
The subheading states: “Influx of Foreign-Born English Teachers Contributes to
Increased Drug Use in South Korea.” The article explains that “[l]ast year alone,
the number of foreigners arrested for using drugs in this country jumped 76.4 per-
cent from the year before.” It goes on to explain “[t]he Narcotics and Organized
Crimes Department at the Supreme Prosecutors’ Office linked the increase to
greater use of English-speaking teachers from the United States, Canada, Great
Britain and Australia.” The article mentions, “offenders have introduced new
kinds of drugs, such as colorful ecstasy pills (MDMA) and ketamine.”38
• In June 2007, the Weekly Hangooki published an article on the “lawlessness” of
foreign communities in Korea. The article states: “There are not only unqualified
English teachers everywhere, but there are also delinquent teachers involved with
countless drug crimes.”39
• In November 2008, SBS broadcast a program reporting that: “The number of for-
eigner instructors who are working in national elementary, middle, high schools,
and private institute is increasing due to the English education trend, but there is
more than a little concern for juvenile safety due to lack of measures to recognize
the criminals among them and to ascertain their qualifications. Urgent measures
are required to block incoming low-quality foreigner instructors who have com-
mitted drug crimes, rape, or other crimes.”40
• In May 2007, the Chosun Ilbo published an article entitled “White English
Teacher Threatens Korean Woman With AIDS.”41 The article reports, as national
news, the lovers’ quarrel hearsay of a Korean woman whose ex-boyfriend was a
foreign English teacher. The article tells the story, not of a “threat,” but of a mean-
spirited email allegedly sent to the woman by the ex-boyfriend revealing that he
had unprotected sex with prostitutes before having unprotected sex with her and
planned to be tested. The unauthenticated email is included in its entirety. The
Chosun Sports also ran the same story under the headline: “Beware of the Ugly
White English Teacher.”42 The story was also picked up in the English Chosun,
which included a quote from the “Korea Foreign Teacher Recruiting Association”
stating, “about 10 percent of the 20,000-30,000 foreign instructors working here
are fired after they were found to have committed sexual improprieties or refused
to teach classes.”43
added). Available at http://english.chosun.com/w21data/html/news/200706/200706070011.html

See section 1(E) for an accurate list of drug crimes by foreign English teachers.
See also e.g. “외국인 밀집 거주지역, 해만 떨어지면 '무법천지”
http://weekly.hankooki.com/lpage/nation/200706/wk2007061113024637070.htm
38
See “English Teachers Bring Drugs to South Korea,” ABC News, October 9, 2008. (Emphasis added).
Available at http://abcnews.go.com/Travel/story?id=5838267
See section 1(E) for an accurate list of drug crimes by foreign English teachers.
39
See “외국인 밀집 거주지역, 해만 떨어지면 '무법천지',” available at
http://weekly.hankooki.com/lpage/nation/200706/wk2007061113024637070.htm#_blank (Emphasis added)
40
See “학위 위조 미국인 강사, '12년 동안' 영어 강의,” available at
http://news.sbs.co.kr/section_news/news_read.jsp?news_id=N1000496455 (Emphasis added).
41
See “백인 영어강사, 한국 여성에 에이즈 위협,” (White English Teacher Threatens Korean Woman With
AIDS) Chosun Ilbo, May 28, 2007 (Emphasis added). Available at
http://news.chosun.com/site/data/html_dir/2007/05/28/2007052800060.html
42
See “어글리 백인 강사' 조심하세요,” (Beware of the Ugly White English Teacher) Chosun Sports, May 28,
2007 (Emphasis added). Available at
http://sports.chosun.com/news/ntype2.htm?ut=1&name=/news/life/200705/20070528/75827008.htm
43
See “Australian English Teacher Blacklisted for AIDS Threat,” English Chosun, May 28, 2007. Available at
12
• In February 2005, the English Chosun published an article discussing an “SBS

investigative program,” which aired a report claiming “English teachers in Korea
[are] engaging in sex with underage local girls, offering drugs to students and fak-
ing qualifications.” The article explains that, “[i]mmediately after the broadcast,
the bulletin board on the program’s website was flooded with over 1,000 furious
posts. ‘I was so infuriated after the broadcast that I couldn't sleep,’ one read. ‘I'm
frightened to send my children to an English academy,’ read another. ‘Foreign
language institutes must do some soul-searching,’ said a user . . . ‘We must
quickly deport all those low-quality foreign English teachers who try to pick up
girls near Hongik University or Apgujeong.”44
• In May 2006, YTN News reported on an incident at an English language camp in

Ansan where a Korean citizen teacher was accused of attempting to sexually as-
sault middle school girls. 45 Despite the fact that no foreign “native English
speakers” were involved, the Korean Teachers and Educational Workers Union
released a statement to the media explaining, “the English camp sexual assaults
are a structural problem brought on by unchecked native English speakers [and]
such incidents could potentially occur at any time.” The union statement went on
to explain that the incident occurred because of “native speakers’ relatively free
attitudes about sex [and] native English speakers’ lack of a sense of responsibil-
ity.”46
While an unconcealed animosity and bias make it difficult consider several of these
statements seriously, it must, nevertheless, be asked whether there is any reasonable or
objective basis in fact for the perceived threat to Korean society posed by foreign English
teachers.
http://english.chosun.com/w21data/html/news/200705/200705280029.html
44
See e.g “TV Program Warms Up Foreign Teacher Controversy,” Chosun (English) News, February 21, 2005.
(Emphasis added). Available at http://english.chosun.com/w21data/html/news/200502/200502210020.html
The SBS broadcast is available at
http://wizard2.sbs.co.kr/vobos/wizard2/resource/template/contents/07_review_detail.jsp?vProgId=1000082&vV
odId=V0000010101&vMenuId=1001376&rpage=4&cpage=46&vVodCnt1=00327&vVodCnt2=00&vUrl=/vob
os/wizard2/resource/template/contents/07_review_list.jsp#
For a detailed discussion of the SBS program and several others that have helped to create the xenophobic panic
in Korean society over foreign English teachers see “Let’s not forget the grudge over Hongdae!” Available at
http://populargusts.blogspot.com/2009/02/lets-not-forget-grudge-over-hongdae.html
See also, e.g. “I am English teacher,” KBS In-Depth 60 minutes (video). Available at
http://www.mongdori.com/forums/read.php?2,589
See also, e.g. “Pandora’s Box,” an exposé style report on foreign English teachers (video). Available at
http://www.mongdori.com/forums/read.php?2,232
See also, e.g. Shin Hee-chul’s “Damage,” a comedy program depicting foreign English teachers gang raping a
Korean woman (video). Available at http://www.mongdori.com/forums/read.php?2,1432
45
See “영어마을 교사가 학생 성추행,” YTN News, May 27, 2006, available at
https://www.ytn.co.kr/article/article_view.php?key=200605272224494051&s_mcd=0804&s_hcd= (Emphasis
added).
46
See “전교조 ‘영어마을 성추행은 구조적 문제’...영어마을, 일방적 매도,” Newis News, May 30, 2006.
Available at
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=003&aid=0000090862 (Emphasis
added).
13
D. The lack of data on foreign English teachers.
The disregard for facts and data on alleged criminal offenses by E-2 visa holders is a
gravely problematic aspect of the genesis of the E-2 visa policy. This paper began with a
request for clarification of a statement contained in the Korea Immigration Service policy
memo, “New Changes on the E2 Teaching Visa Holders in Korea,” which explains the
reasons for the new changes. The statement reads:
Some E2 teaching visa holders in Korea were caught for fraudulent

diplomas, drugs, sexual offenses, etc.47
The request for clarification was simple: how many is “some”? The answer, disturbingly,
was that the Korea Immigration Service does not keep such records.48 Instead, as the policy
memo makes clear, the changes were being implemented because of “News media coverage
about those unqualified E2 teaching visa holders. For example, Mr. Christopher Paul Neil.”
Neil was convicted of child molestation in Thailand, but he had worked as an English
teacher of children in Korea, and his arrest clearly played a major role in the E-2 visa policy
changes. That Neil had worked as an English teacher of children in Korea is no doubt
seriously troubling, however, the new requirements would not have prevented him from
working on an E-2 visa.49 Neil had no criminal record prior to his conviction in Thailand
and had never been charged with a crime in Korea. There was no evidence he was involved
with drugs or was HIV positive. Moreover, his degree from the University of British
Columbia was authentic. As one foreign English teacher quoted in the Asian Pacific Post
put it:
What people don't realize is that this is a knee-jerk reaction based on a

pedophile, who was teaching in Korea but arrested in Thailand, who
didn’t even have a criminal record . . . Sure there are some bad people
out there. But why put us all into one category?50
47
See Policy Memo, supra note 6. (Emphasis added).
48
Korea Immigrations Service, private communication.
49
Korea Immigration Service records show that Neil worked briefly on an E-2 visa before switching to an E-7.
Korea Immigration Service, International Cooperation Division, private communication.
50
See “School daze for English teachers,” Asian Pacific Post, December 20, 2007,
14
Another English teacher, writing in the Korea Times, complained that he was “tired of seeing
us portrayed as criminal, drug-using pedophiles.”51 Yet another English teacher complained
of reporting that was “racially biased and fear mongering.”52
Foreign English teachers in Korea have reason to be disappointed. The E-2 visa
policy not only perpetuates the xenophobic media reports and profiling of foreign English
teachers in Korea, they purport to give a legal basis for discrimination. Instead of
countering the tendency to target and stigmatize foreign English teachers, the government has
decided to validate it.53
E. Foreign English teachers and drug crimes.
The government allows that the Neil incident played a role in the E-2 visa
requirements, but it denies it was the primary cause. “[T]he recent case of Christopher Paul
Neil could be said to have brought the issue to the surface,” an unnamed Ministry of Justice
official explained to the Korea Herald, but “[w]e have been drawing up the new regulations
[sic] for some time.”54 The official also explained that “[d]rug use and other criminal
activities carried out by foreign English teachers have been a social issue for some time, and
have built up to dangerous levels in recent years.”55
However, if foreign English teacher crime and drug use has indeed risen to
“dangerous levels,” it is permissible to ask: by what measure are these levels being recorded?
As mentioned, the Korea Immigration Office does not keep such data, nor does the MOJ. In
available at http://www.asianpacificpost.com/portal2/c1ee8c4416f9b78e0116f9c941e50006.do.html
51
See “E-2 Visa Restrictions,” Korea Times, January 22, 2008. Available at
http://www.koreatimes.co.kr/www/news/nation/2009/01/235_17729.html
52
See Racial Profiling in Reporting, Korea Times, May 5, 2009. Available at
http://www.koreatimes.co.kr/www/news/opinon/2009/05/137_44780.html
53
See CERD, General Recommendation No. 30, page 3, para. 12 supra 12 (explaining that state parties, such as
the Republic of Korea, have a responsibility to “Take resolute action to counter any tendency to target,
stigmatize, stereotype or profile . . . members of ‘non-citizen’ population groups, especially by politicians,
officials, educators and the media, on the Internet and other electronic communications networks and in society
at large.”)
54
See “E-2 visa holders to need medical, criminal checks – starting in December 2007,” Korea Herald,
November 7, 2007. Available at
http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2007/11/07/200711070060.asp (note that the
Ministry of Justice official inaccurately refers to the E-2 visa policy memo requirements as “regulations.”)
55
Id.
15
fact, despite numerous statements from government sources concerning the “criminal
activities” of foreign English teachers, there is very little evidence of crimes56 The only
government agency with any specific data on criminal offenses by foreign English teachers is
the Narcotics Division of the Supreme Prosecutors’ Office.
Drug Arrests of Foreign English Teachers in Korea57

Number The Seven English-Speaking Countries
Types of Drugs
Year
Total of E-2 Eligible for the E-2 Visa
Others Arrests Visa New South
Cannabis Holders U.S.A. Canada U.K. Ireland Australia
(MDMA) Zealand Africa
2005 12 0 12 12,439 4 6 0 0 2 0 0
2006 8 0 8 15,001 4 4 0 0 0 0 0
2007 24 0 24 17,721 8 10 3 0 0 3 0
2008 12 1 13 19,375 6 5 1 1 0 0 0
(Table 2) Statistics for 2005 through November 2008 (Supreme Prosecutors’ Office, Narcotics Division); Statistics for E-2 Visa Holders
from 2005 through September 2008, Table 1 (Korea Immigration Service)58
The data from the Supreme Prosecutors’ Office is instructive. In the three years
before the introduction of the E-2 visa policy (2005-2007) there were no criminal charges for
any of the drugs English teachers are tested for under the E-2 visa requirements.59 It is
difficult to find a reasonable justification for imposing tests on foreign English teachers for
illegal drugs when there had been no arrests for these drugs. In 2008, after the E-2 drug
tests were implemented, there was one arrest for MDMA (ecstasy) for 19,375 E-2 visa
holders in Korea. Therefore, the only drugs charges of any note are cannabis offenses.
Cannabis, however, is not tested for under the E-2 visa policy. A “cannabinoid test”60 was
originally included in the E-2 visa policy memo, but in March 2008 (three months after its
56
Data is generally collected on “non-citizen crime,” but not on foreign English teachers. Considering the
emphasis of the Korean government on the “criminal activities” of foreign English teachers as a pressing “social
issue,” there is a corresponding duty to keep accurate data on these alleged crimes.
57
The Supreme Prosecutors’ Office reports statistics of drug charges and/or arrests, which may or may not have
lead to a conviction. See e.g. “2007 마약류범죄백서”; “Drug Control in Korea” (2007); “Drug Control in
Korea” (2008), Supreme Prosecutors’ Office, Narcotics Division publications. Also note that drug arrests of
“English teachers” may include English teachers on visas other than E-2 visas. According to the Supreme
Prosecutors’ Office: “it is very hard to check if they have E-2 visa or not But generally, english teacher who are
foreigner in Korea have E-2 visa,” private communication.
58
Supreme Prosecutors’ Office, private communication. Included in the annex.
59
The TBPE tests for the presence of ‘hard drugs’ such as methamphetamine and MDMA supra note 8.
60
See Policy Memo supra note 6.
16
introduction) the Korea Immigration Office announced, “[s]tarting from Mar. 15 2008, the
Ministry of Justice decided to leave out the cannabinoid check on a medical record
certificate.”61
Even if the cannabis charges are included in the total amount of drug arrests, however,
24 drug charges out of 17,721 foreign English teachers in 2007 (the most arrests recorded)
would mean that only 0.14% of foreign English teachers were arrested with drugs in Korea.
It is difficult to see how this could account for “dangerous levels” of drug use (as the
Ministry of Justice explains) by any type of measure. Assuming, however, that it does
amount to “dangerous levels” in the judgment of the Ministry of Justice, it is even more
difficult to understand why “the Ministry of Justice decided to leave out the cannabinoid
check.”62 The 2007 data on cannabis offenses was known by March 2008 when the decision
to discontinue testing for cannabis use was made. It seems if there is any “social issue” (as
the Ministry of Justice explains) concerning foreign English teachers in Korea, the issue is
cannabis use. With a 99.86% cannabis-free rate, however, perhaps the abandonment of the
“cannabinoid check” is understandable.
With such low arrest rates, the continued irresponsible statements made by
government officials, the police, and the media concerning foreign English teachers’
involvement with drugs are of serious concern as they appear to be motivated by an animus
that seeks to target and stigmatize foreign English teachers in Korean society. In August
2008, during the Universal Periodic Review process at the Human Rights Council, the
Republic of Korea explained “the National Human Rights Commission of Korea (NHRCK)’s
role in facilitating human rights education.”63
61
See “Simplification of E-2 documents,” Korea Immigration Service website, go to Information>News
Release. Available at http://www.immigration.go.kr/indeximmeng.html
62
Id.
63
See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Republic
of Korea, Addendum ,13 August 2008. A/HRC/8/40/Add.1, page 6, section II(3). Available at
http://lib.ohchr.org/HRBodies/UPR/Documents/Session2/KR/A_HRC_8_40_Add1_RoK.pdf
17
Human rights education for . . . media constitutes one of the major

areas of the Commission’s work together with education focused on
law enforcement officers . . . The media education covers
representation of minorities in the media [and] monitoring the media in
the field of . . . migrants . . . to instill human rights-friendly media.64
Given that a “major area” of the NHRCK’s work is “monitoring the media” and providing
corrective educational guidance to “law enforcement officers,” the lack of action or comment
by the NHRCK on the continued targeting and stigmatization of foreign English teacher is
troubling.65
In addition to immediately providing official comment on the continued profiling of
foreign English teachers in the media, the NHRCK needs to make better efforts to prevent
inappropriate statements from the police like those cited above. The NHRCK has a
responsibly to make police departments aware of the Republic of Korea’s human rights
obligations. The Convention on the Elimination of All Forms of Racial Discrimination
(“CERD”), General Recommendation 31 (on the prevention of racial discrimination in the
administration and functioning of the criminal justice system), explains that non-citizens have
“[t]he right to the presumption of innocence”:66
This right implies that the police authorities, the judicial authorities
and other authorities must be forbidden to express their opinions pub-
licly. . . [and to] cast suspicion in advance on the members of a specific
racial or ethnic group. These authorities have an obligation to ensure
that the mass media do not disseminate information which might stig-
matize certain categories of persons, particularly those belonging to
[non-citizen] groups[.]67
64
Id.
65
The NHRCK has yet to offer comment on the continued profiling of English teachers in the media and by law
enforcement officers. The NHRCK has issued statements on the presumption of innocence in the case of Korean
citizens accused of crimes (including murder) on several occasions, even issuing corrective statements to police
departments. Clearly the NHRCK is obligated to issue similar statements in the case of profiling foreign English
teachers by police. (“The NHRCK recommended . . . a warning against the National Police Agency and against
the Incheon Metropolitan Police Agency . . . [for] publicizing of criminal charges by an investigative authority .
. . Article 27(4) of the Constitution of the Republic of Korea provides for presumption of innocence.”)
See “NHRCK Suggests Stringent Standards for Publicizing Charges Before Trials,” National Human Rights
Commission of Korea, August 29, 2006. (Emphasis added). Available at
http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release. (Emphasis
added). See also, e.g. “‘흉악범 인권’ 인권위는 왜 침묵만 지키나,” available at
http://news.naver.com/main/read.nhn?mode=LS2D&mid=sec&sid1=102&sid2=59b&oid=112&aid=000198351
9
66
See CERD General Recommendation 31 supra note 11. See also Article 27(4) Constitution of the Republic of
Korea; Article 14, ICCPR (note that the ROK has declared a reservation to this article) supra note 11.
67
Id. (Emphasis added).
18
The Republic of Korea is a party to CERD convention, and State parties have a duty to
prevent the stigmatization of non-citizen groups within their territory. The NHRCK, as the
foremost human rights organization in Korea, must remind the police authorities and other
authorities of their human rights obligations.
F. Foreign English teachers and sex crimes.
After drug offenses, the next biggest concern appears to be the alleged sexual offenses
of foreign English teachers. Indeed, the two are often interlinked as in the statement from
the Incheon Yeon-su Police Department explaining how “sex crimes [are] committed by
foreign English teachers, who are high on drugs”; and in the statement of the Foreign Affairs
Division of the Seoul Police Department warning that foreign English teachers “seduce
Korean women and do drugs with them.” Despite the sustained call for vigilance (by the
police) and for protective measures (by the government), neither the police nor the
government keeps records of criminal offenses by foreign English teachers, including sex
crimes. Statistics on sex crimes by foreigners in general are available, however, and it is
possible to extrapolate some basic facts.
The table below includes data on foreigners in Korea from the seven English-speaking
countries eligible to receive an E-2 visa. It includes all foreign English teachers on E-2
visas, but it also includes other foreigners from these seven countries on other visas
(including tourist visas). U.S. military service personnel, however, are not included.
Statistics on Korean citizens are included for comparison.
19
Sex Crime68 Arrests of Foreigners from Seven English-Speaking Countries (All Visa Types)
Compared with Korean Citizens
Total for
Foreigners
Total for
from seven New South
Year Korean
English-
U.S.A. Canada U.K. Australia
Zealand Africa
Ireland
Citizens
Speaking
Countries
2006 48,907 34 30 1 1 1 1 0 0
2007 52,711 37 30 6 0 1 0 0 0
2008 53,240 39 28 7 1 1 2 0 0
69
(Table 3) Sex crime statistics for 2006 through October 2008 (Supreme Prosecutors’ Office).
According to the Korea Immigration Office, as of September 2008, the total population
of non-citizens from each of the seven countries was 152,301: U.S.A. (118,701); Canada
(17,672); U.K. (4,808); Australia (6,362); New Zealand (2,596); South Africa (1,579);
Ireland (583).70 The most recent census put the South Korean population at 49,268,928.71
Examining the data on arrests for sex crimes from 2008 (the most arrests recorded), for every
100,000 foreigners from the seven English-speaking countries, there were 25.6 arrests for
sexual offenses and for every 100,000 Korean citizens, there were 108. Data showing the
crime rate of Korean citizens as several times higher than that of non-citizens living in Korea
is not controversial. The Korean Institute of Criminology, for example, reported that in
2007 the overall “crime rate among [all] foreigners [in Korea] was 1.4% compared with the
3.5% rate among Korean citizens.”72
As for sexual crimes against “children and young students,” in December 2008 the
Ministry for Health, Welfare and Family Affairs warned that the average age of child sex
68
“Sex crimes” include: rape, sexual assault, violations of the Act on Sex Crime and Protection of Victims, and
violations of the Act on the Protection of Juveniles from Sexual Abuse. Supreme Prosecutors’ Office. Included
in the Annex.
69
Supreme Court Prosecutors’ Office, private communication. Included in the Annex.
70
Korea Immigration Service, International Cooperation Division. Included in the Annex.
71
See Korean Statistical Information Service (2007 figures), available at http://www.kosis.kr/
(English website) http://www.kosis.kr/eng/index.html
72
See “외국인 범죄율은 낮지만 건수는 크게 늘어,” (A small increase in the number of crimes by foreigners)
Chosun Ilbo, July 9, 2008. Available at
English translation available at http://koreabeat.com/?p=1217
20
crime victims in Korea was 14, with 32.7% of victims under the age of 13.73 The perpetrators,
however, were not foreign English teachers. In fact, the E-2 policy memo does not report
any crimes committed by foreign teachers against Korean “children and young students.”
Christopher Paul Neil, the only foreign teacher cited in the policy memo, committed his
crimes overseas and no Korean children were victimized. Korean teachers, however, have
been charged with numerous sexual offenses against children. Just in the past year, there
were three high profile cases. In October 2008, a Korean teacher was sentenced to 10
months in prison for repeatedly sexually molesting a student.74 In January 2008, a Korean
teacher stripped a five-year-old student naked and locked her outside of the school in the
middle of winter.75 In July 2008, a Korean educational worker was granted probation after
being convicted of sexually molesting a disabled student.76 In 2009, the case of “Min,”
Korean middle school teacher who sexually assaulted several minor students, dramatically
demonstrated the lack of adequate background checks for Koreans. A police officer
investigating the case explained, “this teacher had many previous convictions . . . I don’t
understand how someone like this could become a teacher.”77 Reports of Korean students
being sexually abused are common. In December 2008, the NHRCK surveyed student
athletes and found that “63.8% of the respondents said that they experienced sexual
73
See “Age of Sexual Crime Victims Getting Lower,” The Korea Times, December 22, 2008. Available at
74
See “초등생 성추행 영어강사 징역10월,” Chusun Ilbo, October 14, 2008. Available at
75
See “어린이집 '한겨울 알몸 체벌' 충격,” Oh My News, January 25, 2008. Available at
http://www.ohmynews.com/NWS_Web/view/at_pg.aspx?CNTN_CD=A0000822284&PAGE_CD=12
76
See “장애아 성폭행교사 집유 항의,” the Hankyoreh, July 15, 2008. Available at
http://www.hani.co.kr/arti/society/handicapped/298925.html
77
See “‘여제자 성폭행’..충북 교육계 파문,”(Serious loopholes in background checks for Korean teachers),
Yonhap, April 7, 2009. (Reporting “The provincial office of education . . . is being criticized for not doing more
to prevent . . . cases [of sexual abuse among Korean teachers from] occurring again and again. Ethical problems
among [Korean] teachers have come to light as a result of the current case, but the issue of sex scandals among
[Korean] teachers is not of just today or yesterday . . . One educational authority said, ‘the law needs to be
reformed so that [Korean] teachers teaching students are held to the highest ethical standards through broader
criminal background checks.’”) Available at
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=001&aid=0002596104 For an
English translation, see http://koreabeat.com/?p=4376
21
violence.”78 There is no justification for presuming foreign teachers are more likely to
commit sexual offenses against “children and young students” as the policy memo suggests.
Sexual violence is not the only harm that threatens Korean children and young stu-
dents; physical violence is also likely. Reports of corporeal punishment and physical abuse
of Korean students by Korean teachers are common and well known internationally.79 In
May 2008, during the Universal Periodic Review process before the Human Rights Council,
Italy stressed the need for the Republic of Korea “To urgently amend relevant legislation to
expressly prohibit corporal punishment in schools . . . and implement educational measures
promoting positive and non-violent forms of discipline.”80
On October 17, 2007, when news broke of the arrest of one foreign English teacher in
Thailand for the sexual abuse of children, it only took a week before the National Assembly
had received a bill proposing a complete revision in qualifications for foreign English
teachers, and within months, the plans had been implemented. Contrast that with the lack of
legislative action after the release of a Ministry of Education report in 2005 by National
Assemblyperson Kwon Chul-hyun listing 1,733 charges of “misconduct” by Korean teachers
and calling for urgent measures.81
78
See “Result of Inquiry into the Human Rights Situation of Student Athletes - Physical Abuse 78.8%, Sexual
Abuse 63.8%,” National Human Rights Commission of Korea, December 18, 2008. (Emphasis added).
Available at http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release.
79
See “Korea Failing to Protect its Vulnerable Populations, Violence Cover-Up, Apathetic Law-Enforcers,” for
a compilation of recent incidents of abuse. Available at http://www.koreasparkle.com/2008/11/korea-fails-
protecting-helpless-violence-children/#content
See e.g. “High School Beating Video Sparks Outrage,” Chosun Ilbo, November 1, 2007. Available at
http://english.chosun.com/w21data/html/news/200711/200711010024.html
See also e.g. “유치원 교사가 테이프로 6살 어린이 입 막아 물의,” MBC News, March 25, 2008. Available at
6
80
of Korea, 29 May 2008; page 15, para. 64(29). A/HRC/8/40; A/HRC/WG.6/2/L.6 Available at:
http://www.unhcr.org/refworld/docid/485b96303.html
81
See “2년간 교사 1733명 입건... 징계는 '솜방망이',” Oh My News, September 26, 2005. Available at
http://www.ohmynews.com/NWS_Web/View/at_pg.aspx?CNTN_CD=A0000282133
22
입건교사
위 법 행 위 유 형 (Type of Misconduct) (Number of [Korean]
Teachers Indicted)
폭행상해치사(Assault, bodily injuries resulting in death) 294
음주운전무면허운전등(Driving while intoxicated, Driving without a license) 1,059
강제추행청소년강간성매매(Sexual assault, Juvenile rape, Buying sex) 35
간통혼인빙자간음(Adultery, Seduction by promise of marriage) 19
사기등(Fraud) 20
살인치사등(Homicide) 5
도박(Gambling) 14
절도횡령뇌물수수등(Larceny, Embezzlement, Bribery) 31
마약(Illegal drugs) 2
기타(Others) 254
합 계 (Total) 1,733
(Table 4) From the Office of National Assemblyperson Kwon Chul-hyun.82
Four years later, reports of abuses by Korean teachers are still common.83
If the Korean government is interested in improving the protection of “children and
young students,” then the first question is: how are these “children and young students” likely
to be harmed? As Korean citizen teachers are as likely to pose a threat to Korean “children
and young students” as anyone, excluding them from precautionary procedures is unjustified.
If increased scrutiny is warranted for foreign teachers, then it is clearly warranted for Korean
teachers as well, and standards should be applied equally.
82
Id.
83
See e.g. “Teachers’ Union Has Image Problem,” Korea Times, May 17, 2009. (“Korea Teachers’ Union
President Chung Jin-hwa [said] . . . ‘It is shameful and regretful that we were involved in sexual assault
incidents.’”) Available at http://koreatimes.co.kr/www/news/nation/2009/05/117_45034.html
See also, e.g. “대마 피운 교사, 뽕 맞은 목사,”Hankyoreh, May 9, 2009 (reporting “crackdown on drugs
resulted in the discovery of 56 current [Korean] high school teachers and ministers, the arrest of 23 people, and
the seizure of 606 grams of methamphetamine”). Available at
http://www.hani.co.kr/arti/society/society_general/353978.html For an English translation see
http://koreabeat.com/?p=4623
See also, e.g. “‘술자리 거부하면 F학점’성추행,” (If you don’t let me molest you, you fail the course), Maeil
Kyungjae, May 1, 2009. (Reporting “four male [Korean] teachers in a high school in Anyang forced three
female college students [training to be teachers] to accompany them . . . and when they refused threatened to
give them failing marks . . . they molested them by kissing their cheeks and groping their buttocks.”) Available
at
5 For an English translation, see http://koreabeat.com/?p=4573
See also, e.g. “‘여고생 치마 벗겨 체벌’ 10여명이 받았다,”(Take off your skirts girls), Joongdo Ilbo, April 29,
2009. (Reporting that “Gwangju City Office of Education . . . announced on the 28th that, ‘our investigation of
the teacher and students concerned found that a [Korean] teacher of English, during a lesson, administered
corporal punishment to the students after having them remove their skirts.’”) Available at
http://www.joongdoilbo.co.kr/jsp/article/article_view.jsp?pq=200904290094 For an English translation, see
23
G. Foreign English teachers and HIV/AIDS.
The E-2 visa compulsory HIV/AIDS tests and deportation policy knowingly fail to
“protect children and young students” from HIV/AIDS, and may actually increase the threat
of infection. The Korean government is well aware that teaching English to students does
not transmit the HIV virus. Consequently, the Korean government is also aware that testing
foreigners for HIV cannot accomplish the goal of “protect[ing]children and young students.”
The Korean public’s awareness of HIV/AIDS and how it is transmitted, on the other hand, is
very low. The Korean government was therefore able to exploit the public’s ignorance by
implementing in-country HIV tests for foreign English teachers that gave the public the
illusion of protection, but, as will be explained, heightened the risk to the Korean public.
HIV/AIDS awareness in Korea is extremely low. The Korea HIV/AIDS Information
Center (한국에이즈정보센터) is currently sponsoring a public campaign called “HUG
AIDS!”84 that is designed to counter the ignorance of the Korean public, who still believe
that HIV/AIDS can be transmitted through casual contact (such as a hug or a kiss) with
people living with HIV/AIDS (“PLWHA”). The Korea HIV/AIDS Information Center
conducted a survey in 2007 where 30.4% of respondents answered “yes” to the question:
“Can you catch AIDS by kissing someone with AIDS?”85 The motto of the campaign is:
“Compared to AIDS, our prejudice about it is more frightening! HUG AIDS!”86
In 2004, the Korean Anti-AIDS Federation also conducted a survey on AIDS aware-
ness. When asked, “Would you allow your children to go to a school where PLWHA
children attend?” 50.4% of respondents answered “no.”87 Three years later, the Korea
HIV/AIDS Information Center survey asked the same question with 44.4% of respondents
84
See Korea HIV/AIDS Information Center’s “HUG AIDS!” campaign. Available at
http://www.aidsinfo.or.kr/Board/bbs/board.php?bo_table=Comm_01&wr_id=11&page
85
Id. (“에이즈 감염인과 키스를 하면 에이즈에 감염될 수 있다?”)
86
Id. (“AIDS보다 우리의 편견이 더 무서워! HUG AIDS!”)
87
See “Republic of Korea, Fighting a Rising Tide: The Response to AIDS in East Asia,” (2006)
Shin Surin, Chief of the AIDS Program, Korean Alliance to Defeat AIDS. Available at
www.jcie.org/researchpdfs/RisingTide/rok.pdf
24
still answering “no.”88 Given the Korean public’s serious misunderstanding of how HIV is
transmitted and the public’s strong fear of infection in the school setting, it is no surprise that
many Koreans find the idea of a foreign teacher with HIV terrifying. Instead of correcting
the public’s misperception through educational efforts, however, the government has decided
to perpetuate this misperception and give the public a false sense of security by implementing
symbolic HIV testing of foreign English teachers. Yet this move by the government only
reinforces the misunderstanding of how the disease is spread, heightens the stigma and
discrimination surrounding PLWHA, and promotes the false idea that only foreigners are in
danger of infection. As explained by UN Secretary General Ban Ki-moon, discrimination
and ignorance directly contribute to the increase of HIV infection rates by “driv[ing] the virus
underground, where it can spread in the dark.”89 Thus, the government’s stated aim of
protecting the public is made in bad faith.
Ignorance of HIV/AIDS is so pervasive in Korea that, in the 2008 landmark “Heo”
decision canceling the deportation of a foreigner with HIV, the Seoul Administrative Court
dedicated an entire section to “Recognized Facts” on HIV/AIDS:
The main routes of HIV infection are sexual intercourse, blood transfu-
sion, pregnancy, childbirth, and infected syringes. HIV/AIDS is not
transmitted by water, by air, or through day-to-day contact such as a
handshake or a hug. HIV/AIDS is not transmitted by shared food, pub-
lic baths, shared toilets, or by insect bites. The mere presence of HIV
positive people does not heighten the risk of infection.90
The court’s careful explanation of the nature of HIV infection makes clear that the Korean
public still has significant misunderstandings of how the disease is transmitted. This
misunderstanding has created a dangerous prejudice that thwarts attempts to curb the spread
of the disease. As Shin Surin, Director of the AIDS Prevention Association of Korea,
88
See Korea HIV/AIDS Information Center Survey supra note 84. (“당신의 자녀가 있을 때 에이즈 감염자와
같은 학교에 다니도록 허용하시겠습니까?”).
89
See Human Rights Watch, “Blaming Foreigners,” 12 March 2009. Available at
http://www.unhcr.org/refworld/docid/49be0a311a.html
90
Heo Case, Seoul High Court Decision. On file with the author.
25
explains, “it is stigma, discrimination, and prejudice related to HIV/AIDS and PLWHA that
remain the main obstacles to carrying out further AIDS prevention efforts.”91 Director Shin
has further explained how Korea’s deportation policy can lead to an increase in the number of
unreported cases of foreigners in Korea with HIV/AIDS:
Once a non-Korean is found to be HIV-positive, he or she is forced to

leave the country without any care or counseling . . . Because of this
compulsory expulsion, migrant workers usually do not come forward
for HIV/AIDS testing, and those who know their HIV status do not
seek medical care for the same reason. The actual number of
HIV/AIDS cases in this population is therefore likely to be higher than
the official figure.92
The government’s deportation policy decreases the possibility of HIV detection and
therefore increases the threat of spreading the disease within Korean society. Very few of
the more than 700,000 long-term foreign residents in Korea (not required to be HIV tested
under the policy memo) would consider having a voluntary in-country HIV test when a
positive result means deportation, losing their jobs, and being separated from their families.93
Most foreigners residing in Korea are not required by the government to receive HIV tests.
Korea’s deportation policy ensures that many of these foreigners will never be tested for the
disease.
As will be explained, forcible deportation policies (such as the E-2 visa policy) do
more damage than just discouraging foreigners from voluntarily testing; they also discourage
Koreans from being tested. The E-2 visa policy promotes the false idea that HIV/AIDS is a
“foreigners’ disease,” perpetuates the stigma associated with it, and ignores the needs of the
91
See “Republic of Korea, Fighting a Rising Tide: The Response to AIDS in East Asia,” supra note 87.
(Emphasis added).
92
93
See e.g. “Korea: Infected, Detected, Rejected – Troubling treatment for foreigners with HIV/AIDS,” Oh My
News, April 10, 2008. (Michael Solis, visiting researcher at the National Human Rights Commission of Korea,
explaining “If you are a foreigner residing in South Korea who has ever toyed with the idea of determining your
HIV/AIDS status, then prepare yourself for an inevitable and disturbing dilemma. That is, will the risks of
getting an HIV test outweigh the risks of not getting one? In Korean hospitals and medical clinics, a foreign
patient’s anonymity and confidentiality are by no means guaranteed, especially when it comes to HIV testing. In
fact, hospitals and clinics will report the names of foreigners found to be infected with HIV or AIDS to
immigration, resulting in sure and swift deportation.”) Available at
http://english.ohmynews.com/articleview/article_view.asp?menu=c10400&no=382295&rel_no=1&isPrint=print
26
13,000 Korean citizens estimated by UNAIDS/WHO to be infected with HIV/AIDS. 94
Because the HIV testing rate is so low in Korea, many of these Koreans with HIV/AIDS are
unaware of their status. As AIDS Prevention Association Director Shin explains:
Stigma and discrimination toward HIV/AIDS has also greatly hindered

prevention efforts . . . [T]he HIV/AIDS testing rate in Korea is low be-
cause people are afraid of the stigma attached to the disease . . . Saving
face in Korean culture is very important, and the combination of low
public awareness and the potential stigma associated with a positive
diagnosis leads many people to not check their HIV/AIDS status . . .
Prejudice and discrimination are among the worst fears of PLWHA. As
long as stigma, prejudice, and discrimination persist in society, it is
easy to imagine that the HIV testing rate will remain low.95
The E-2 visa foreign English teacher deportation policy keeps the focus of HIV/AIDS
on foreigners, increases the stigma attached to the disease, and ignores the many Koreans
living with HIV who are unaware of their infected status. Joseph Amon, Director of the
Health and Human Rights Division of Human Rights Watch, recently examined the
disturbing trend in Korea’s HIV/AIDS policy. In his article, “Blaming Foreigners,” Amon
specifically mentions “the Ministry of Justice’s E-2 visa policy which . . . affects foreigners
seeking to teach English.”96 He goes on to explain that in South Korea:
[T]he view persists that HIV is a problem of “others” and that it can be
controlled by testing all who try to enter South Korea and barring those
living with HIV from coming, or staying. . . The idea of controlling
HIV through testing foreigners ignores the nature of how HIV is
transmitted, and the fact that HIV transmission occurs locally. The
World Health Organization (WHO) recognized this in 1987, declaring
the screening of international travelers for HIV to be ineffective as a
public health strategy. Laws banning the entry of individuals living
with HIV also tend to increase stigma and to create a false sense that
only non-citizens are at risk for HIV. These laws diminish efforts to
expand domestic HIV prevention and treatment efforts . . . South
Korea does, indeed, need to adopt measures to deal with the threat
posed to people's health. The threat, however, is not from foreigners. It
is from ignorance.97
94
See “UNAIDS/WHO Epidemiological Fact Sheets on HIV and AIDS, Republic of Korea, 2008 Update.”
Available at http://www.who.int/globalatlas/predefinedReports/EFS2008/full/EFS2008_KR.pdf
95
See “Republic of Korea, Fighting a Rising Tide: The Response to AIDS in East Asia,” (2006)
supra note 87.
96
See Human Rights Watch, “Blaming Foreigners,” supra note 89. (Internal parenthesis removed).
97
27
The way forward

Fortunately, there are institutions in Korea, such as the NHRCK, which are even now
leading the nation toward a more enlightened and more effective policy on HIV/AIDS. The
NHRCK has recently noted:
[P]rejudice against and misunderstanding of HIV/AIDS [is] prevalent

in Korean society, with HIV-infected persons suffering serious
discrimination and human rights abuses despite the fact that people
cannot be infected with HIV through ordinary contact. [There is a]
deep-rooted bias against and stigma associated with HIV-infected
persons in Korean society [which constitutes] discrimination based on
medical conditions.”98
In May 2007, the Korea Immigration Service sought to deport a foreigner (identified as
“Heo”) because he had tested positive for HIV while residing in Korea. Heo brought a legal
action to have the deportation order reversed, and the NHRCK took action:
The NHRCK submitted its opinion to the Seoul Administrative Court

to the effect that the departure order by the Seoul Immigration Service
was highly likely to infringe upon foreigners’ rights to reside in the
country as legal aliens and their rights to equality, specifically non-
discrimination on grounds of medical history.99
The Seoul Administrative Court ruled that the government’s deportation policy vio-
lated Heo’s human rights and cancelled the deportation. In its written opinion, the court
emphasized the need to protect human rights in order to encourage voluntary testing. The
court explained that detection and treatment, not deportation, were the surest means of
preventing the spread of HIV/AIDS in Korea.
From the perspective of HIV/AIDS prevention, the most dangerous

thing for society is not persons who are infected with HIV and aware
of their status, but persons who are infected with the disease and un-
aware of their status. A person who is aware of infection will be less
likely spread the disease. On the other hand, a person who is unaware
of infection is more likely to spread the disease. In the final analysis,
98
See “NHRCK Welcomes Seoul Administrative Court's Decision to Reverse Departure Order Against HIV-
Infected Foreigner,” May 6, 2008, National Human Rights Commission of Korea. (Emphasis added). Available
at http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release.
99
See “Deportation of an HIV-Infected Foreigner Is Extreme,” March 31, 2008, National Human Rights
Commission. (Emphasis added). Available at http://www.humanrights.go.kr/english/index.jsp go to Home >
Main Activities > Press Release.
28
encouraging the public to voluntarily receive HIV testing by protecting

the human rights of people living with HIV/AIDS is the most effective
policy for preventing the spread of the disease. The current policy of
deportation, therefore, is not a sound method for protecting the public
health.100
The Seoul Administrative Court and the NHRCK have recognized that a forced de-
portation policy for foreigners (like the E-2 visa policy) not only violates human rights; it can
lead to more cases of Koreans with HIV/AIDS. Increasing the stigma attached to the
disease and thereby discouraging the public from receiving voluntary HIV testing is “the
most dangerous thing for society . . . [because] a person who is unaware of infection is more
likely to spread the disease.”
It is clear that the actual intent of the E-2 visa compulsory HIV/AIDS test and depor-
tation policy is not to “protect children and young students,” but to give a fearful public a
false sense of security by discriminating on the basis of medical conditions. As Jeong Jeong-
hun, a lawyer for the Korean Public Interest Lawyers’ Group (공익변호사그룹공감), explains:
“the forcible deportation of foreigners with HIV/AIDS shows that our country is still ruled by
a paradigm of fear. . . [F]orcible expulsion of foreigners cannot be justified.”101
With the Heo case, the NHRCK has already recognized that the forced deportation of
one foreigner with HIV violates the human right to “non-discrimination on the grounds of
medical history.”102 In the case of the E-2 visa policy, thousands of foreigners have to
undergo compulsory HIV testing and “will have their stay cancelled and be deported”103 if
they test positive. The NHRCK needs to release an official opinion stating the E-2 visa
policy constitutes discrimination, just as it did with the Heo deportation case.
100
See Heo Case, Seoul High Court Decision. A copy is on file with the author. (Emphasis added).
101
“‘에이즈 인권’도 외국인 차별,” Seoul Shinmun, December 1, 2008. (Emphasis added). Available at
http://news.naver.com/main/read.nhn?mode=LS2D&mid=sec&sid1=102&sid2=59b&oid=081&aid=000198494
7
102
See “Deportation of an HIV-Infected Foreigner Is Extreme,” March 31, 2008, National Human Rights
Commission supra note 98.
103
See Foreign Language teaching (E-2) > Revision of Foreign Language Instructor (E-2) visa issuance
requirements>Required submission of self-health statement supra note 27. (Emphasis added).
29
The International Covenant on Economic, Social and Cultural Rights (General Com-
ment 14) “proscribes any discrimination in . . . underlying determinants of health . . .
including HIV/AIDS.”104 The U.N. Commission on Human Rights has also stated that the
non-discrimination clause of the ICCPR (Article 26)105 includes discrimination based on
HIV status.106 The international community is already making inquires into the discrimina-
tory nature of the E-2 visa policy. In May 2008, the United Kingdom presented its
“Advance written questions for States under Review (SuR)” to the UN Human Rights
Council during the Universal Periodic Review process. In its questions to the Republic of
Korea, the U.K. specifically mentions the “E-2 Teaching Foreign Languages” visa.107 The
U.K. notes that the E-2 visa requires disclosing “HIV status, and there have been reports of
foreigners being deported because of their HIV status,” it goes on to ask: “Does the ROK
Government consider this to be discrimination and, if so, what measures will it take to
address this issue?”108 Despite questions such as this from the international community, the
NHRCK has yet to make any statement concerning the required disclosure of HIV status of
the nearly twenty thousand foreigners affected by the E-2 visa policy and the deportations
that will result for those found to be HIV positive. The NHRCK should immediately release
104
See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14 supra note
14.
105
See ICCPR Article 26 (stating “All persons are equal before the law and are entitled without discrimination
to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all
persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property birth or other status”). (Emphasis added).
Available at http://www2.ohchr.org/english/law/ccpr.htm
106
See UN Commission on Human Rights, The protection of human rights in the context of human
immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS), 3 March
1995. E/CN.4/RES/1995/44 (stating “[D]iscrimination on the basis of AIDS or HIV status, actual or
presumed, is prohibited by existing international human rights standards, and that the term “or other
status” in non-discrimination provisions in international human rights texts can be interpreted to cover
health status, including HIV/AIDS.”) (Emphasis added). Available at:
http://www.unhcr.org/refworld/docid/3b00f0ac0.html
See also UN Commission on Human Rights, The protection of human rights in the context of human
immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS), 19 April
1996. E/CN.4/RES/1996/43. Available at: http://www.unhcr.org/refworld/docid/3b00f0b14.html
[accessed 5 March 2009).
107
See United Kingdom: Advance Written questions to States under Review (SuR), Session 2: 5-19 May 2008,
available at http://www.upr-info.org/IMG/pdf/Advance_Written_Questions_from_UK_S2.pdf
See also http://www.upr-info.org/IMG/pdf/QUESTIONS_TO_REP._OF_KOREA_rev.2.pdf
108
30
an official opinion stating the E-2 visa policy of forcibly deporting HIV positive non-citizens
constitutes discrimination on the basis of medical history, just as it did with the Heo
deportation case.
H. The E-2 visa policy, and the xenophobic trend it represents, threatens to
undermine Korea’s hard work and good record in the field of human rights.
In May 2007, the Republic of Korea enacted the Basic Act on the Treatment of
Foreigners Residing in Korea (the “Basic Act”).109 The Republic of Korea introduced the
Basic Act to the Committee on the Elimination of Racial Discrimination in August 2007, just
one month after it had gone into effect, and explained that the Basic Act would contribute to
“social integration through the promotion of mutual understanding and respect between
foreigners and Korean nationals.”110 In February 2008, the Republic of Korea brought the
Basic Act to the attention of the Human Rights Committee and further explained that it “sets
forth obligations of the central and local governments . . . to prevent discrimination against
and protect the human rights of foreigners.”111 In May 2008, during the Universal Periodic
Review before the Human Rights Council, the Republic of Korea again drew attention to the
“Basic Act on Treatment of Foreigners Residing in Korea,” also mentioning “the Inter-
Ministerial Committee on Policies Regarding Foreigners” that was formed under the Act.112
In September 2008, in response to the “Questionnaire on the Follow-up Measures of the
Durban World Conference Against Racism, Racial Discrimination, Xenophobia and Related
109
재한외국인 처우 기본법, 제정 2007.5.17 법률 제8442호. Basic Act on the Treatment of Foreigners
Residing in Korea, Act No. 8442, May 17, 2007; (Hereinafter “Basic Act”). Included in the Annex.
110
See UN Press Release: “Committee on Elimination of Racial Discrimination Considers Report of the
Republic of Korea,” August 10, 2007. (Hereinafter “2007 UN CERD Press Release”). Available at
http://www.unhchr.ch/huricane/huricane.nsf/view01/B77E3956B335DD33C1257333004FA7CA?opendocumen
t
111
See UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article
40 of the Covenant: International Covenant on Civil and Political Rights: concluding observations of the
Human Rights Committee: Republic of Korea: addendum: comments by the Government of the Republic of
Korea on the Concluding Observations of the Human Rights Committee, 29 February 2008; page 2, para. 5.
CCPR/C/KOR/CO/3/Add.1. (Hereinafter “2008 CCPR Report”). (Emphasis added). Available at:
http://www.unhcr.org/refworld/docid/47fdfd8c2.html
112
of Korea, 29 May 2008; page 4, para. 6. A/HRC/8/40; A/HRC/WG.6/2/L.6. Available at:
31
Intolerance,” the Republic of Korea showcased the Basic Act as an example of “good
practices achieved in the fight against racism, racial discrimination, xenophobia and related
intolerance.”113 The Republic of Korea further explained that:
Comprehensive and systematic policies for foreigners who reside in

the ROK [have been created] through the enactment of the Basic Act of
the Treatment of Foreigners in Korea and [by] establishing periodic
five-year “Basic Plans for Policies Regarding Foreigners.”114
It is significant that the Basic Act is largely unknown among the foreign community
residing in Korea. In August 2007, the Committee on the Elimination of Racial
Discrimination officially requested that Korea “provide an English translation of the [Basic]
Act on the Treatment of Foreigners in Korea”; 115 however, nearly two years after its
enactment a translation of the document has still not been provided.116 The E-2 visa
requirements, on the other hand, are well known in the foreign community, and English
translations of the requirements were readily provided by the government and widely
distributed by employers.
The Basic Act, as the Republic of Korea has explained at the international level,
creates an Inter-Ministerial Committee on Policies Regarding Foreigners in Korea (the
“Committee”). 117 This Committee, in turn, creates a five-year Basic Plan for Policies
113
See “Replies to Questionnaire on the Follow-up Measures of the Durban World Conference Against Racism,
Racial Discrimination, Xenophobia and Related Intolerance”. Available at
http://www2.ohchr.org/english/issues/racism/DurbanReview/docs/session1/korea.doc See also DURBAN
REVIEW CONFERENCE Preparatory Committee Intersessional open-ended intergovernmental working group
to follow up the work of the Preparatory Committee, 1 September 2008; page 21.
A/CONF.211/PC/WG.1/CRP.1 Available at
http://www2.ohchr.org/english/issues/racism/DurbanReview/docs/session2/WG.1_CRP.1.doc
114
Id.
115
See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination
of Racial Discrimination: Concluding Observations, South Korea, 17 August 2007; page 2, para. 11.
CERD/C/KOR/CO/14. Available at: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf
116
In reply to a formal request for an English translation in November 2008, the MOJ provided the following
response: “Korea Immigration Service received your application through e-people on November 25 [2008]. You
requested the English version of the Basic Act on Treatment of Foreigners in Korea . . . Unfortunately, we are
still working on the translation of the Act into English.” On file with the author. An English translation was
finally made available in April 2009, after the initial release of this report on February 4, 2009. Available at
www.moleg.go.kr/FileDownload.mo?flSeq=25840
117
See Basic Act, Article 8 (Committee on Policies Regarding Foreigners in Korea) supra note 109.
32
Regarding Foreigners in Korea (the “Basic Plan”).118 The creation of the Basic Act, the
Committee, and the first five-year Basic Plan represents many years of work in the field of
human rights in Korea, and the Republic of Korea can truly be proud of this accomplishment.
Nevertheless, it is permissible to ask how it was possible that the E-2 visa requirements were
introduced through a policy memo without the status of law – subjecting over 17,000
foreigners residing in Korea to compulsory in-country HIV and drug tests – without any
comment or review by an Act whose purpose it was to establish a basic level of acceptable
treatment for foreigners residing in Korea.119
Article 4 (Relationship with other laws) of the Basic Act specifically requires the
review of new laws regarding foreigners for consistency with the standard of treatment set by
the Basic Act. Furthermore, in keeping with the Act’s purpose of promoting mutual
understanding and respect between foreigners and Koreans (Article 1), the Basic Act also
provides for a mechanism for dialog with the foreign community residing in Korea (Articles
11, 20, and 21). Additionally, section 1-2-2 of the Basic Plan calls for cooperation between
foreign workers and the Committee in formulating policies on foreigners in Korea. 120
Unfortunately, however, the required review of the E-2 visa requirements was not undertaken,
the foreign community was not engaged in dialog, and foreign English teachers were not
consulted.
Article 10 of the Basic Act focuses on the protection of the human rights of foreigners
in Korea and notes the importance of maintaining the Constitutional standard of equality and
non-discriminatory treatment by central and local government agencies. As the Human
Rights Committee has explained, “Non-discrimination, together with equality before the law
and equal protection of the law without any distinction, constitute a basic and general
118
See Basic Act, Article 5 (Basic Plan for Policies Regarding Foreigners in Korea) supra note 109.
119
See Article 1 (Purpose) of the Basic Act supra note 109.
120
See 외국인정책기본계획 (2008-2012), Section 1-2-2.
33
principle relating to the protection of human rights.”121 The Basic Act was created to help
protect against the discriminatory treatment of foreigners by reviewing rules and policies for
consistency with national and international human rights obligations. These safeguards,
however, were ignored in the case of the E-2 visa policy, and thousands of non-citizens
residing in the Republic of Korea, under the protection of its Constitution and laws, were
subject to invasive searches of their bodies for HIV and illegal drugs without any basis other
than being foreign and presumed dangerous.
The E-2 visa policy goes against everything the Republic of Korea has worked toward
in the past several decades in creating advanced national practices that protect human rights
and in becoming party to six core international human rights treaties.122 The E-2 visa
policy, however, represents more than just a minor blemish on Korea’s good record; it
represents a move toward increased xenophobia in the country. On December 30, 2008, a
proposed amendment to the Immigration Control Act was introduced to the National
Assembly that could require E-2 visa type medical tests for any foreigner working in Korea.
The purpose statement of the bill (No. 3356) reads:
Nowadays, the number of foreigners working in Korea is increasing,

but a good many have previous convictions for drug and sexual crimes
or carry infectious diseases. As we require measures to deal with the
threat they pose to our society’s public order and our people’s health,
we herein prepare the legal basis to require that foreigners applying for
an employment visa submit a criminal background check and a health
certificate.123
The Basic Plan makes clear that the Republic of Korea is now is the process of
121
See UN Human Rights Committee (HRC), CCPR General Comment No. 18: Non-discrimination, 10
November 1989; page 1, para. 1. (Emphasis added). (Hereinafter “CCPR General Comment No. 18). Available
at: http://www.unhcr.org/refworld/docid/453883fa8.html
122
International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and
Political Rights; International Convention on the Elimination of All Forms of Racial Discrimination;
Convention on the Rights of the Child; Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; Convention on the Elimination of All Forms of Discrimination against Women.
123
See 출입국관리법 일부개정법률안 (신학용의원 대표발의), No. 3356, (December 30, 2008). (Emphasis
added).
34
attempting to create a multicultural society.124 The Basic Plan explains that declining birth
rates and an aging Korean population have emerged as a major political agenda and that
Korea needs to attract more foreigners “to become permanent members of society.”125 In
order to accomplish this goal, the Basic Plan explains, it is necessary to create an environ-
ment that reflects multicultural values and respects non-citizens residing in Korea as equal
members of society. Statements by National Assemblypersons suggesting that “a good
many” foreigners coming to live and work in Korea are drug users, criminals, or carrying
infectious diseases are clearly counterproductive to the long-term goals of the Republic of
Korea. The targeting, stigmatization and profiling of foreign English teachers has created a
xenophobic trend that threatens to undo the Republic of Korea’s hard work in securing basic
human rights for the foreign resident population.
The E-2 visa policy requirements are not laws or regulations. They represent a
violation of Constitutional procedure and are in direct contravention to Article 37(2) of the
Constitution of the Republic of Korea by restricting, without the status of law, the rights of
non-citizens residing in Korea. The “legal basis” of the E-2 visa requirements is still of
major concern. In addition to the recently reintroduced bill, the Ministry of Justice has
issued notice of legislation for new immigration regulations that seek to establish a legal basis
for the current extra-legal E-2 visa policy memo requirements.126 Notice has been given and
new immigration regulations have been submitted to the Ministry of Government Legislation
for approval.
An insidious process is unfolding in Korean society. Xenophobic beliefs have been
allowed to spread through the media and society and are now threatening to become law.
There is an opportunity, however, for the Republic of Korea to show its continuing
124
See generally 외국인정책기본계획 (2008-2012).
125
Id. at section 1-1.
126
출입국관리법 시행령 및 시행규칙 일부개정령(안) 입법예고, 법무부 공고 제2008-158호 (December 31,
2008). These regulations were approved after the initial submission of this report on February 4, 2009.
See 별지 제21호의3 서식, 신설 2009.4.3.
35
commitment to human rights and to the non-citizen community residing in Korea. The
NHRCK should issue an opinion that the E-2 policy memo requirements constitute
discrimination under Korean law. Further, the NHRCK should inform the National
Assembly Legislation and Judiciary Committee and the Ministry of Government Legislation
that both proposed Bill No. 3356 and the proposed E-2 visa regulations require review under
Article 4 of the Basic Act and if passed would constitute discrimination under Korean law.
Section two of this paper will present the legal arguments for a clear finding of dis-
crimination by examining the Constitution of Korea, the Labor Standards Act, the Act on
Foreign Workers Employment, the National Human Rights Commission Act, the Basic Act
on the Treatment of Foreigners Residing in Korea, the International Convention on the
Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and
Political Rights, and applicable national and international case law.
36
2. The E-2 Visa Policy Memo Requirements Constitute Discrimination Under Korean Law
A. The E-2 visa requirements are not “entry requirements.”
Since the submission of the initial report to the NHRCK on February 4, 2009, the
Ministry of Justice has attempted to retrospectively justify the E-2 visa policy requirements
as entry requirements:
A visa policy is a country’s own right. You cannot blame a country for
controlling the entry of foreign nationals.127
Different countries have different visa policies. It is a matter of a coun-

try’s sovereignty to decide who should be allowed to enter the
country.128
[F]oreigners do not have the right to demand that a country guarantees

equal rights with the nationals of the country regarding entry into the
country. . . The assertion of Prof. Wagner is based on the flawed prem-
ise that entry into a certain country is the constitutional basic rights of
foreigners and thus misunderstands the relevant Korean law.129
There are two groups of non-citizens to consider in analyzing whether the MOJ’s de-
scriptions of the E-2 requirements as “entry requirements” are accurate. The first group is
the more than 17,000 E-2 visa holders residing in Korea in December 2007, when the E-2
visa policy changes were instituted. The second group consists of non-citizens who
received their E-2 visas after the E-2 visa policy changes were put into effect.
In the case of the first group, the analysis is straightforward. The MOJ’s description
of entry requirements as a method of “controlling the entry of foreign nationals” and
“decid[ing] who should be allowed to enter the country” is correct. However, the
compulsory HIV and drug testing E-2 visa requirements put into effect in December 2007
were applied to over 17,000 aliens who had already been admitted to the Republic of Korea
and allowed to enter the territory. Indeed, many of these aliens had been residing in the
127
See “Foreign Teachers Fight ‘Discrimination,’” The Korea Times, February 4, 2009. (Emphasis added).
Available at http://www.koreatimes.co.kr/www/news/nation/2009/02/117_38955.html
128
See “Visa rules for foreign English teachers challenged,” JoongAng Daily, February 5, 2009. (Emphasis
added). Available at http://joongangdaily.joins.com/article/view.asp?aid=2900646 
129
See “Misunderstanding About Visa Rules,” The Korea Times, March 6, 2009. (Emphasis added).
Available at http://www.koreatimes.co.kr/www/news/opinon/2009/03/160_40819.html
37
Republic of Korea for years before the compulsory tests were put into effect. Therefore, the
E-2 requirements, as applied to this group, were assuredly not to “control[] the entry of
foreign nationals” or “to decide who should be allowed to enter” the Republic of Korea, as
the MOJ maintains, since this group of non-citizens had already entered Korea and taken up
residence.
The above MOJ quote, which explains, “It is a matter of a country’s sovereignty to
decide who should be allowed to enter the country,” accurately describes the sovereign rights
of nations as set out in the International Covenant on Civil and Political Rights. ICCPR
General Comment No. 15 on The Position of Aliens Under the Covenant130 makes clear that
“It is in principle a matter for the State to decide who it will admit to its territory.”131
However, as ICCPR General Comment No. 15 goes on to explain: “once aliens are allowed
to enter the territory they are entitled to the rights set out in the [ICCPR] Covenant.”132 In
other words, while it is true that sovereign nations have the right to establish entry
requirements for foreign nationals, international law does not permit nations to create ex post
facto requirements for non-citizens who have already entered the country and justify them
retrospectively as “entry requirements” in order to avoid rights which non-citizens are
entitled to under the ICCPR and national law. The MOJ’s international law argument
concerning the E-2 requirements as “entry requirements,” therefore, is entirely misplaced.133
Finally, the MOJ must also be reminded that non-citizens who have entered, and are residing
130
See UN Human Rights Committee (HRC), CCPR General Comment No. 15: The Position of Aliens Under
the Covenant, 11 April 1986, (hereinafter “ICCPR General Comment 15). Available at:
http://www.unhcr.org/refworld/docid/45139acfc.html
131
Id. at para. 5.
132
Id. at para. 6. (Emphasis added).
133
Moreover, contrary to the opinion of the MOJ, international law does not recognize a sovereign right to set
up discriminatory entry or residency requirements. As ICCPR General Comment 15 paragraph 5 states: “in
certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence,
for example, when considerations of non-discrimination . . . arise.” Id. at para. 5. (Emphasis added).
38
in the Republic of Korea are not only entitled to rights under the ICCPR, but are also entitled
to rights under the Constitution of Korea.134
It now remains to be determined whether the E-2 visa requirements can be consid-
ered “entry requirements” under Korean immigration law in the case of the second group of
non-citizens; namely, those who have arrived in Korea after implementation of the E-2 visa
policy in December 2007. The above MOJ quote accurately describes entry requirements as
a method of “controlling the entry of foreign nationals” and “decid[ing] who should be
allowed to enter the country.” Entry requirements for the Republic of Korea can be found in
Article 11 (Prohibition of Entry) of the Immigration and Control Act. As Article 11
explains, the Republic of Korea may “prohibit the entry of [] foreigner[s] . . . carrying an
epidemic disease, narcotic addicts or other persons deemed likely to cause danger and harm
to the public health.”135 The intent of Article 11 is to “prohibit the entry” of foreigners
“likely to cause danger and harm to the public health.” Article 11, therefore, sets up
legitimate “entry requirements” for foreign nationals and “prohibit[s] the entry” of those who
cannot meet these requirements. The E-2 visa policy, however, takes an approach contrary
to the Article 11 entry requirement procedure.
Under the E-2 visa policy, all foreign English teachers are permitted to enter the Re-
public of Korea regardless of their likelihood “to cause danger and harm to the public health.”
The Korea Immigration Service then searches them all with in-country medical tests and
deports the undesirables. As the Korea Immigration Service explains it, foreign English
teachers must submit “health examination records upon applying to be a registered foreigner
after entering Korea” and “[t]hose that are found to have drug intake, AIDS or other disease
[sic] the law defines as serious contagious disease [sic] in their health examination will have
134
See “Non-citizens in Korea have the right to equality and non-discriminatory treatment” infra section 2(B).
135
Article 11(1)1, Immigration Control Act, Act No. 1289, March 5, 1963. (Emphasis added).
39
their stay cancelled and be deported.”136 In other words, the intent of the E-2 visa policy is
contrary to the goal of the Article 11 “entry requirement” procedure, which is designed to
“prohibit the entry” of foreigners “likely to cause danger and harm to the public health.”
Entry requirements under the Article 11 procedure would demand that medical tests
be conducted outside the territory of the Republic of Korea to determine which foreigners are
“carrying an epidemic disease [or are] narcotic addicts” before they were admitted in order to
“prohibit the entry of [those] foreigner[s] . . . likely to cause danger and harm to the public
health.” However, the Korea Immigration Service’s E-2 requirements explicitly refuse as
unacceptable medical tests done outside the territory of Republic of Korea. As the E-2
policy memo requirements make clear, medical tests must be done at hospitals inside the
territory of Korea: “대한민국 정부가 지정하는 한국내 병원에서 발급한 건강진단서를 제

137
출해야 합니다.”
It is clear, therefore, that in the case of the second group of non-citizens as well as the
first group, the intention of the Korea Immigration Service has never been to create entry
requirements for the E-2 visa. Rather, the intent of the government has been to conduct
searches of non-citizens residing in Korea without regard for their fundamental human rights
under the Constitution and other applicable national and international laws. Under the E-2
visa policy, foreign language teachers are considered suspicious and required to prove their
innocence. However, it must be remembered that under the E-2 visa policy, not only
“[t]hose that are found to have drug intake, AIDS or other disease [sic] the law defines as
serious contagious disease [sic] in their health examination will have their stay cancelled and
be deported”;138 the E-2 visa policy also seeks to deport healthy, drug-free non-citizens who
136
requirements> Required submission of self-health statement supra note 27.
137
See 원어민 회화지도 (E-2) 사증제도 개선 안내, 법무부, 2007. 11. (Emphasis added). Included in the
Annex.
138
requirements> Required submission of self-health statement supra note 27. (Emphasis added).
40
pose no threat to the public health but who refuse to submit to body searches that violate their
fundamental human rights.139
B. Non-citizens in Korea have the right to equality and non-discriminatory

treatment.
The Committee on the Elimination of Racial Discrimination, in its August 2007
concluding observations to the Republic of Korea, expressed “concern[] about the persistence
of widespread societal discrimination against foreigners” in Korea and urged the Republic to
“adopt further measures, including legislation, to prohibit and eliminate all forms of
discrimination against foreigners.” 140 The Republic of Korea shares the Committee’s
concern with the discrimination that occurs against non-citizens residing in its territory and
has explained to the Committee that “the relative lack of multi-ethnic experiences have been
conducive to . . . prejudice against foreign cultures and people”141 and “[t]he principle of the
‘pure-blooded’ based on the Republic of Korea’s pride in the nation’s ethic homogeneity, has
incurred various forms of discrimination.”142 Indeed, discrimination based on “foreign
nationality” has been identified by the Korean government as a “major concern[]” and is
listed as one of the “five main types of discrimination in [Korean] society.”143
Addressing the Human Rights Committee in February 2008, the Republic of Korea
139
See e.g. “Foreign Teacher Renews Visa With No Health Checks,” Korea Times, March 27, 2009. Available
at http://www.koreatimes.co.kr/www/news/nation/2009/03/113_42107.html Ms. Andrea Vandom is an E-2 visa
holder who has resided in Korea for 3 years. In 2009, she was told to report to a National hospital for drug and
HIV testing. Ms. Vandom refused, explaining “[t]hese tests unreasonably discriminate against me as a foreigner
living in Korea and are a violation of my human rights.” Ms. Vandom is not an illegal drug user, nor is she HIV
positive, nevertheless, the Korean Immigration Service is now attempting to have her E-2 visa cancelled.
140
of Racial Discrimination: Concluding Observations, South Korea, 17 August 2007; page 2, para 11 .
141
of Racial Discrimination: State Party Report, Republic of Korea, 17 January 2003; page 10, para. 44.
CERD/C/426/Add.2. (Hereinafter “2003 CERD Report”). Available at:
http://www.unhcr.org/refworld/docid/3f24767b4.html
142
of Racial Discrimination: Addendum to the Fourteenth Periodic Reports of State Parties Due in 2006, Republic
of Korea, 18 August 2006; page 10, para. 44. CERD/C/KOR/14. (Hereinafter “2006 CERD Report”). Available
at http://www.unhcr.org/refworld/docid/45c30ba10.html
143
See UN Human Rights Committee (HRC), UN Human Rights Committee: Third Periodic Report, Republic
of Korea , 21 February 2005, page 15, para 46. CCPR/C/KOR/2005/3. Available at:
http://www.unhcr.org/refworld/docid/43f2ff650.html
41
explained that “[t]he Government submitted an anti-discrimination bill . . . before the
National Assembly on December 12, 2007 [which offered] a concrete means to uphold
Article 11 of the Constitution as a basic act that prohibits discrimination and provides
remedies therefore.”144 While this bill failed to be enacted by the National Assembly, it is
essential to bear in mind that the prohibition on the discrimination of non-citizens remains the
law of the land as guaranteed by the Constitution and that effective remedies for such
discrimination remain available. 145 Indeed, in its most recent comment to the CERD
Committee the Republic of Korea stated it was again “conducting research on related
domestic laws and foreign cases of similar legislation and is redoubling its efforts to
introduce the Anti-Discrimination Act.”146
Article 11 of the Constitution of the Republic of Korea states only that “[a]ll citizens
shall be equal before the law, and there shall be no discrimination”;147 the Constitutional
Court of Korea, however, has ruled that non-citizens in Korea are also entitled to the right of
equality and non-discriminatory treatment.148 At the international level, the Republic of
Korea has also made clear, through its reports to the Committee on the Elimination of Racial
Discrimination, that “[t]he principle of respect for human rights and the principle of equality
144
See 2008 CCPR Report supra note 111, page 2, para. 4. (Emphasis added).
145
See e.g. UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the
Elimination of Racial Discrimination: State Party Report, Republic of Korea, 17 January 2003; page 13, para.
69. CERD/C/426/Add.2. (the ROK explaining that “remedies are available in the case of an infringement of
rights by government agencies.”). Available at: http://www.unhcr.org/refworld/docid/3f24767b4.html
146
UN Committee on the Elimination of Racial Discrimination (CERD), Reports submitted by States parties
under article 9 of the Convention: International Convention on the Elimination of all Forms of Racial
Discrimination: information provided by the Government of the Republic of Korea on the implementation of the
concluding observations of the Committee on the Elimination of Racial Discrimination, 23 January 2009; page
3, para. 9. CERD/C/KOR/CO/14/Add.1 Available at: http://www.unhcr.org/refworld/docid/4986f2ad2.html
147
See Article 11 of the Constitution of the Republic of Korea, supra note 11.
148
See Constitutional Court of Korea decision, 93 Hun-Ma 120, 1994.12.29. Available at
http://minwon.ccourt.go.kr/home/view2/xml_content_view02.jsp?seq=381&cname=%C6%C7%B7%CA%C1%
FD&eventNo=93%C7%E5%B8%B6120&pubflag=0&eventnum=1623&sch_keyword=&cid=01030002
See also Constitutional Court of Korea decision, 99 Hun-Ma 494, 2001.11.29. Available at
http://www.ccourt.go.kr/home/view2/xml_content_view02.jsp?seq=1079&cname=%C6%C7%B7%CA%C1%F
D&eventNo=99%C7%E5%B8%B6494&pubflag=0&eventnum=4302&sch_keyword=&cid=01030002
See also Constitutional Court of Korea decision, 2004 Hun-Ma 670 infra note 157.
42
of individuals before the law, as enshrined in the Constitution, also apply to foreigners.”149
The Republic of Korea is a party to the International Convention on the Elimination
of All Forms of Racial Discrimination (“CERD”) without reservation and has recognized the
individual complaint procedure governed by article 14.150 “State parties [to the CERD] are
under an obligation to guarantee equality between citizens and non-citizens in the enjoyment
of [fundamental human] rights to the extent recognized under international law.” 151
Moreover, the Constitution of the Republic of Korea, Article 6(2), backs up this obligation by
ensuring that “[t]he status of aliens shall be guaranteed as prescribed by international law and
treaties.”152
Neither the Constitution nor the CERD, however, forbids every difference in
treatment between citizens and non-citizens. Some rights, “such as the right to participate in
elections, to vote and to stand for election, may be confined to citizens.” 153 “Since
citizenship is a prerequisite for the exercise of certain rights, e.g. the right to vote, the right to
hold office, as well as the right to carry out official duties, these rights are inapplicable to
foreigners.”154 These citizen rights, however, are “[t]he exceptions . . . which, by their
nature, are regarded as being applicable only to nationals of the Republic [of Korea].”155
149
See 2006 CERD Report supra note 142, page 4, para. 11. (Emphasis added).
150
See CERD status of ratifications, declarations and reservations. Available at
http://www2.ohchr.org/english/bodies/ratification/2.htm
See “Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination,” for
more information on the Article 14 procedure. Available at
http://www2.ohchr.org/English/bodies/cerd/procedure.htm
151
See CERD, General Recommendation No. 30, supra note 12, page 2, para. 3. The CERD puts forward a
broad definition of racial discrimination: “In this Convention, the term ‘racial discrimination’ shall mean any
distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public
life.” CERD Article 1(1). Available at http://www2.ohchr.org/english/law/cerd.htm
152
See Article 6(2) of the Constitution of the Republic of Korea supra note 10.
153
See CERD, General Recommendation No. 30 supra note 11, page 2, para. 3.
154
of Racial Discrimination: Addendum to the Fourteenth Periodic Reports of State Parties Due in 2006, Republic
of Korea, 18 August 2006, page 4, para. 11, CERD/C/KOR/14. Available at:
http://www.unhcr.org/refworld/docid/45c30ba10.html
155
Id.
43
All other rights, such as the “right[] . . . to just and favorable conditions of work”156 and the
right to a non-discriminatory workplace,157 are guaranteed to non-citizens under Korean law.
C. The E-2 visa policy memo requirements impermissibly nullify the right to
equality and non-discriminatory treatment as guaranteed by Korean labor law.
Korean labor laws clearly and unambiguously prohibit discrimination against non-
citizens in the employment context. As the Republic of Korea explained to the Committee
on the Elimination of Racial Discrimination in 2006, “the legislation of the Act on Foreign
Workers Employment on August 16 2003 applied all labour-related laws, including Labour
Standard Act, to foreign workers and native workers equally.”158 The Labor Standards Act,
Article 6 (Equal Treatment), states that “[n]o employer shall discriminate against workers . . .
or give discriminatory treatment in relation to the conditions of labor on the basis of
nationality.”159 As the Republic of Korea plainly puts the matter in its 2006 CERD report:
“the Labour Standard Act prohibits discrimination of foreigners on the grounds of foreign
nationality.” 160 The Act on Foreign Workers’ Employment, Article 22 (Prohibition of
Discrimination), also makes clear that “[a]n employer shall not give unfair and discriminatory
treatment to foreign workers on the grounds of their status.”161
It is, therefore, impossible for the E-2 visa policy memo requirements to compel
employers to discriminate against foreigners by rejecting for hire a non-citizen English
teacher who refuses to provide blood and urine for HIV and drug testing, but accepting for
hire a citizen English teacher who similarly refuses. Unlike the Labor Standards Act or the
Act on Foreign Workers’ Employment, the E-2 requirements have not been enacted by the
156
See UN General Assembly, International Convention on the Elimination of All Forms of Racial
Discrimination, 21 December 1965; Article 5(e)(i). A/RES/2106. Available at:
http://www.unhcr.org/refworld/docid/3b00f1931c.html
157
See Constitutional Court of Korea decision 19-2 KCCR 297, 2004 Hun-Ma 670, Aug. 30, 2007 (finding that
non-citizens have a right to a non-discriminatory workplace environment). Available at
http://www.ccourt.go.kr/home/main/xml/month_view.jsp?mainseq=65&seq=2
158
See 2006 CERD Report, supra note 142, page 12, para 61.
159
Labor Standards Act, Act No. 5309, Mar. 13, 1997. Wholly amended by Act. No. 8561, Jul. 27, 2007.
160
See 2006 CERD Report, supra note 142, page 12, para 61. (Emphasis added).
161
Act on Foreign Workers’ Employment, Act No. 6967, Aug. 16, 2003. Amended by Act No. 8218, Jan. 3,
2007.
44
National Assembly and cannot be accorded a similar status. The E-2 visa policy memo has
no legal basis to require the discriminatory HIV and drug testing of foreign workers residing
in Korea, however, these tests have continued for over a year in violation of the non-
discrimination clause of the Labor Standards Act.
This is not the first time that non-citizens residing in Korea have been subject to
human rights violations because of the misapplication on the Immigration Control Act. As
the Republic of Korea explained to the Committee on the Elimination of Racial
Discrimination in its 2003 CERD report:
Concerning the rights of foreigner workers, the Supreme Court ruled in

September 1995 that the purpose of the Immigration Control Act is to
provide for matters concerning control over immigration of all
nationals and foreigners who enter or depart from the Republic of
Korea and control over the sojourn of foreigners who stay in the
Republic of Korea, and that the provisions of the Act must not be
invoked to nullify the rights of [foreign] workers [guaranteed to them
in other Acts.]162
The E-2 visa policy memo requirements affect precisely the same nullification of rights.
The Labor Standards Act guarantees the right of equal and non-discriminatory treatment to
non-citizen and citizen employees alike, but the E-2 policy memo requirements nullify these
rights by forcing employers to impose discriminatory practices on foreign employees, without
even possessing the status of law.
In 1997, the Supreme Court of Korea heard a case that presented a clash between the
Labor Standards Act and the Immigration Control Act. In this case, the “Supreme Court
ruled . . . that employers should pay a retirement allowance to undocumented migrant
workers in accordance with the provisions of the Labour Standard Act, despite their illegal
162
See 2003 CERD Report, supra note 141, page 13, para. 71. (Emphasis added). See also CCPR General
Comment No. 18, supra note 121, para. 6. (stating that “The Committee believes that the term ‘discrimination’
as used in the Covenant should be understood to imply any distinction, exclusion, restriction, or preference
which is based on any ground such as . . . national or social origin . . . and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights
and freedoms.” (Emphasis added)). See also Committee on the Elimination of Racial Discrimination, General
Recommendation No. 14, Definition of Discrimination (Art. 1, par. 1) para. 1 (1993) (stating that “A distinction
is contrary to the Convention if it has either the purpose or effect of impairing particular rights and freedoms.”).
Available at http://www.bayefsky.com/general/cerd_genrecom_14.php
45
status as defined by immigration laws.”163 If immigration laws cannot be invoked to nullify
rights guaranteed by the Labor Standards Act, then clearly the policy memo, without even the
status of law, cannot overcome the Labor Standards Act (Article 6) right of non-
discrimination, and subject foreign workers only to in-country HIV and drug tests without
reasonable basis.
Speaking of a now abolished industrial trainee program for foreign workers, the
Republic of Korea explained in its most recent CERD report (2006) that:
Under the previous industrial training programme, the [foreign]

trainees were subject to human rights violations due to their
underprivileged status under the Immigration Control Act and limited
entitlement to protection guaranteed by the Labour Standard Act. The
new system, however, treats foreign workers as labourers and applies
all labour-related laws, including the Labour Standard Act . . . to
foreigners and natives equally.164
In the case of the E-2 visa policy memo requirements, foreign workers are again accorded an
underprivileged status and again subject to human rights violations. The E-2 requirements
cannot limit the full application of the Labor Standards Act to foreign workers because “all
labour-related laws, including Labour Standard Act, [apply] to foreign workers and native
workers equally.”165
In a recent decision directly on point, the Constitutional Court of Korea ruled in
August 2007 that a government regulation was unconstitutional because it applied only some
parts of the Labor Standards Act to foreign workers and impermissibly nullified the right to
equal treatment under Article 6 of the Labor Standards Act.166 The Court stated:
It is difficult to find reasonable grounds that essential particulars of la-

bor standards guaranteed by the Labor Standards Act are not applied to
foreign [workers] even when [they] are practically in labor relation-
ships offering their services . . . Hence, it must be unreasonable
discrimination that companies exclude [foreign workers] from the
163
See 2003 CERD Report, supra note 141, page 13, para. 71.
164
See 2006 CERD Report, supra note 142, page 9, para. 36. (Emphasis added).
165
See 2006 CERD Report, supra note 142, page 12, para 61.
166
See 2004 Hun-Ma 670 (finding that non-citizens have a right to a non-discriminatory workplace
environment) supra note 157.
46
workers to whom all the provisions in the Labor Standards Act are ap-
plied . . . In this case, not an Act but an administrative regulation limits
the right, and, therefore, it is against the principle of limiting the rights
by law.167
It is clear that the E-2 policy memo requirements, as well as the proposed regulations (if
enacted), similarly limit the application of the Labor Standards Act. Foreign English teachers,
as foreign workers in the Republic of Korea, are guaranteed the right of equal treatment and a
non-discriminatory workplace environment under Korean law. As the Constitutional Court
has explained:
The labor right includes not only ‘a right to a working position’ but
also ‘a right to a [non-discriminatory] working environment’. Since
the latter reflects the nature of liberty, which defends against the
infringement upon human dignity, it includes the right to claim a
healthy working environment, a just reward for work, and the
guarantee of reasonable working conditions, and foreign workers can
enjoy these rights.168
The E-2 visa policy memo requirements constitute “unreasonable discrimination” and
unconstitutionally limit the rights of foreign English teachers under Korean labor law; they
must therefore fail.
D. The CERD ensures that the Korean legal standard of “unreasonable

discrimination” (as used in the National Human Rights Commission Act and the Basic
Act on the Treatment of Foreigners Residing in Korea) has adequate definitional clarity
and sufficient authority to prohibit discrimination.
The National Human Rights Commission Act (2001)169 and the recently enacted
Basic Act on the Treatment of Foreigners Residing in Korea (2007) both address the issue of
non-citizen discrimination by government agencies such as the Korea Immigration Service.
These Acts have yet to develop the binding authority required by the Constitution and the
167
Id. (Emphasis Added). Note that in addition to finding the regulation discriminatory, the court also finds that
Article 37(2) of the Constitution applies to foreigners: “The freedoms and rights of citizens [and non-citizens]
may be restricted by Act only.”
168
See 2004 Hun-Ma 670 supra note 157.
169
National Human Rights Commission Act, Act. No. 6481, May 24, 2001, available at
http://www.humanrights.go.kr/english/information/legal_materials_02.jsp
47
CERD to guarantee equality between citizens and non-citizens,170 nevertheless, government
agencies are not allowed to discriminate against non-citizens with impunity. On the contrary,
just as in the case of the failed anti-discrimination bill, the underlying obligation to prohibit
discrimination against non-citizens, and provide remedies for discrimination, remains the law
of the land as guaranteed by the Constitution and binding international treaties such as the
CERD. The Republic of Korea is well aware of this obligation and in demonstrating that
awareness has, notably, overstated the binding authority of both Acts to the international
community.
In the case of the National Human Rights Commission Act, in its most recent CERD
report (2006) to the Committee on the Elimination of Racial Discrimination, the Republic of
Korea stated “[t]he Act explicitly prohibits discrimination . . . and provides the grounds on
which such acts can be declared illegal and subject to punishment.”171 The National Human
Rights Committee of Korea, however, in an independent report to the Committee on the
Elimination of Racial Discrimination, explained “the statement that the current [National
Human Rights Commission] Act provides the legal basis for declaring discriminatory
practices a crime, thereby making them subject to prosecution is not true and needs to be
revised.” 172 The report went on to explain that the “NHRCK can only conduct
investigations on discriminatory acts of legal bodies, organizations and private individuals,
and can give recommendations on the basis of those investigations.”173
In the case of the Basic Act on the Treatment of Foreigners Residing in Korea, the
Republic of Korea stated to the Human Rights Committee that “Article 10 of the Basic Act on
[the] Treatment of Foreigners Residing in Korea . . . sets forth obligations of the central and
170
Article 11, Constitution of the Republic of Korea; CERD, General Recommendation No. 30, supra note 12,
para. 3.
171
See 2006 CERD Report, supra note 142, page 4, para. 12. (Emphasis added).
172
See Information Report for the Committee on the Elimination of Racial Discrimination submitted by the
National Human Rights Commission of Korea. Available at
http://www2.ohchr.org/english/bodies/cerd/docs/ngos/NHRCK.pdf
173
Id.
48
local governments . . . to prevent discrimination against and protect the human rights of
foreigners.” 174 Article 10 of this Act, however, merely states, “the central and local
governments should make efforts to prevent against unreasonable discrimination.”175
While the status of these particular pieces of legislation may yet be hortatory rather
than mandatory, the statements of the Republic of Korea to the international community
articulating its clearly perceived obligation to “prohibit discrimination”176 and “protect the
human rights of foreigners”177 are highly significant. Such an obligation is best expressed
by the legal concept opinio juris, the essential binding element of international law.178 The
Republic of Korea is fully aware that the CERD places it “under an obligation to guarantee
equality between citizens and non-citizens in the enjoyment of [fundamental human] rights to
the extent recognized under international law.”179 The CERD, however, is more than just a
treaty representing Korea’s obligations at the international level; the CERD is also national
law. As explained by the Republic of Korea in its reports to the Committee on the
Elimination of Racial Discrimination, “[t]he [CERD] Convention was ratified and
promulgated by the Government with the consent of the National Assembly [and] [a]s such, it
has the same authority of domestic law and does not necessitate additional legislation.”180
174
See 2008 CCPR Report supra note 111, page 2, para. 5. (Emphasis added).
175
See Basic Act, Article 10, supra note 109. (Emphasis added).
176
See 2006 CERD Report, supra note 142, page 4, para. 12.
177
See 2008 CCPR Report, supra note 111, page 2, para. 5.
178
In international law, opinio juris is the subjective element which is used to judge whether the practice of a
state is motivated by a belief that it is legally obliged to do so and not as a mere “comity” or “courtoisie” in
relations between states. In presenting its most recent periodic report to the Committee on the Elimination of
Racial Discrimination, the delegation of the Republic of Korea emphasized that, “the government had been
making efforts to legislate the Discrimination Prohibition Act for a comprehensive and effective response to
discrimination.” “That Act,” explained the Deputy Permanent Representative of the Republic of Korea to the
United Nations Office at Geneva, Chang Dong-hee, “would include specific references to discrimination . . .
[as] an illegal and prohibited act.” See 2007 UN CERD Press Release supra note 110.
179
See CERD, General Recommendation No. 30 supra note 12, para. 3.
180
See 2006 CERD Report supra note 142, page 4, para. 10. (Emphasis added). Available at:
http://www.unhcr.org/refworld/docid/45c30ba10.html See also 2003 CERD Report supra note 141, page 4,
para. 10. Available at http://www.unhcr.org/refworld/docid/45c30ba10.html The status of the CERD in Korea as
a fully self-executing treaty can be contrasted with the application of the Convention in the United States and
Japan. The United States, while a party to the CERD, has submitted a “declaration . . . making clear that this
[CERD] convention is not self-executing [and] it does not create a new or independently enforceable private
cause of action in U.S. courts . . . Existing U.S. law provides extensive protections and remedies against racial
discrimination sufficient to satisfy the requirements of the present convention.” Conrad Harper, Legal Advisor
49
In other words, the CERD has full status as Korean law and places upon the Republic
of Korea an affirmative duty “to take effective measures to review governmental, national
and local policies, and to amend, rescind or nullify any laws and regulations which have the
effect of creating and perpetuating racial discrimination wherever it exists.”181 Moreover,
unlike the National Human Rights Commission Act or the Basic Act on the Treatment of
Foreigners Residing in Korea, remedies exist to back up this CERD duty to “amend, rescind,
or nullify” discriminatory laws and requirements like those of the E-2 visa. The Republic of
Korea, in its 2003 CERD report, explains that, “remedies are available in the case of an
infringement of rights by governmental agencies.”182
In addition to the non-binding aspect of the National Human Rights Commission Act
and the Basic Act on the Treatment of Foreigners Residing in Korea, there is a second
shortcoming. Both Acts fail to adequately define “unreasonable discrimination,” a key term
of the State Department, Senate Committee on Foreign Relations testimony, May 11, 1994. See David
Weissbrodt, Joan Fitzpatrick, Frank Newman International Human Rights: Law, Policy, and Process, 689-690,
(3d. ed. 2001). Japan, also a party to the CERD, has similarly submitted a declaration to CERD stating that the
Convention has “legal effect as a part of domestic laws in accordance with . . . the Constitution . . . Whether or
not to apply provisions of the convention[] directly is judged in each specific case[.]” See UN Committee on the
Elimination of Racial Discrimination: State Party Report, Japan, 26 September 2000,CERD/C/350/Add.2; page
4, para. 5. Available at http://www.unhcr.org/refworld/docid/3b4c0ec84.html CERD Committee member Mr. de
Gouttes expressed concern with the Japanese declaration, noting that since “the Convention’s provisions were
not self-executing in Japanese law . . . national legislation had to be adopted to implement the [CERD]
convention.” Comm. on Elimination of Racial Discrimination, Summary Record of the 1444th Meeting: Japan,
U.N. Doc. CERD/C/SR.1444; page 8, para. 35. Available at
http://daccessdds.un.org/doc/UNDOC/GEN/G01/409/48/PDF/G0140948.pdf?OpenElement However, despite
the non-self executing status of the CERD in Japan, non-citizens (notably including ethnic Koreans) have
brought CERD claims in Japanese courts and some have even won cases using the CERD. (See e.g. Hyon v.
Chiba Country Club, 1773 Hanrei Jiho 34, 36, Tokyo H. Ct., Jan. 31, 2002); Bortz v. Suzuki, 1045 Hanrei
Taimuzu 216, Shizuoka D. Ct., Oct. 12, 1999). Successful use of the CERD in a Korean court, therefore, should
be even more likely, since in Korea the “Convention forms part of the domestic law and is directly applicable in
the courts of the State party,” despite the fact that “there are no court decisions which contain references to or
confirm the direct applicability of its provisions.” See UN Committee on the Elimination of Racial
Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Concluding Observations,
South Korea, 17 August 2007, CERD/C/KOR/CO/14; page 5, para. 20. (Emphasis added). Available at
http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf
For more information on the CERD in Japan, see Timothy Webster, Reconstituting Japanese Law: International
Norms and Domestic Litigation, Michigan Journal of International Law, Vol. 30, no. 1, (2008). Available at
http://students.law.umich.edu/mjil/article-pdfs/v30n1-webster.pdf
181
See UN General Assembly, International Convention on the Elimination of All Forms of Racial
Discrimination, 21 December 1965; Article 2(1)(c). A/RES/2106. Available at:
http://www.unhcr.org/refworld/docid/3b00f1931c.html
182
See 2003 CERD Report supra note 141, page 13, para. 69.
50
that each employ.183 While courts have applied the term in cases, for example in the context
of the Labor Standards Act (Article 6) as cited above in 2004 Hun-Ma 670, as Professor Lee
Ilhyung explains: “Court observers have expressed a general frustration with the lack of
clarity in opinions.”184 Constitutional law scholar Ahn Kyoung Whan further explains that:
In many opinions the reasoning is based on a foregone conclusion. A

typical ending may go something like this: ‘The discrimination here is
not unconstitutional because it is not unreasonable.’ By American
standards, opinions of Korean courts fall short of full discussion on the
legal arguments and issues raised and sometimes jump to hasty
conclusions. Further ambiguities arise from the new judicial fashion of
incorporating several constitutional provisions without sorting out the
core ingredients of each provision.185
The Committee on the Elimination of Racial Discrimination has specifically requested
clarification of the term “unreasonable discrimination.”186 In its most recent CERD report
(2006), the Republic of Korea submitted that “unreasonable discrimination” should be
understood as discrimination “without reasonable cause.”187 “The National Human Rights
Commission,” the report continues, plans to examine the relevant “case precedents,
regulations, and practices in other countries . . . when determining the existence of a
‘reasonable cause.’”188 While there currently exist no clear standards at the domestic level,
the report explains that the NHRCK “plans to form a team of experts, both in and outside the
Commission, to set standards for determining whether an act of discrimination has a
183
See Article 10 of Basic Act supra note 109; Article 4 of National Human Rights Commission Act supra note
169.
184
Ilhyung Lee, Korean Perception(s) of Equality and Equal Protection, 31 B.C. Int’l & Comp. L. Rev. 53, n.
15 (2008).
185
Id. (citing Kyong Whan Ahn, The Influence of American Constitutionalism on South Korea, 22 S. ILL. U.
L.J. 71, 102 (1997)). (Emphasis added).
186
See Concluding observations of the Committee on the Elimination of Racial Discrimination: Republic of
Korea. 10/12/2003; para 8. CERD/C/63/CO/9 (Concluding Observations/Comments) (“The Committee also
requests more detailed information on how the term "unreasonable discrimination" in article 30 (2) of the
National Human Rights Commission Act (2001) has been interpreted and applied in practice.”) Available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.63.CO.9.En?Opendocument
187
See 2006 CERD Report supra note 142, page 7, para. 27. The Korean terms “unreasonable discrimination”
and so-called “discrimination with reasonable cause,” in the language of applicable treaties, would correspond
to the terms “discrimination” and “differentiation” respectively.
188
51
‘reasonable cause’ or not.”189
This standard-setting plan corresponds to the Republic of Korea’s new “National
Action Plan (NAP) for the Promotion and Protection of Human Rights.” 190 As the
delegation of the Republic of Korea explained to the Committee on the Elimination of Racial
Discrimination in August 2007, the NAP is an ambitious five-year “comprehensive
nationwide master plan . . . which present[s] an overarching perspective for all human rights
related laws, systems and policies.”191 During the Universal Periodic Review process before
the Human Rights Council in May 2008, the Republic of Korea again “highlighted the
National Action Plan (NAP) 2007-2011 for the Promotion and Protection of Human Rights,
noting that the observations and recommendations by the United Nations treaty monitoring
bodies were set as standards in the NAP.”192 Thus, the Republic of Korea has indicated that
the “standards for determining whether an act of discrimination has a reasonable cause or
not”193 under Korean law are to be found in the recommendations of United Nations treaty
monitoring bodies such as the Committee on the Elimination of Racial Discrimination.
In the following section it will be demonstrated how the Committee’s General
Recommendation No. 30 (Discrimination Against Non-Citizens) of the CERD can used to
adequately define the Korean legal standard of “unreasonable discrimination” in the context
of the E-2 visa policy.
E. The CERD is Korean law and provides the applicable standard for a
determination of whether discrimination has occurred in the context of the E-2 visa
policy.
In August 2007, the Committee on the Elimination of Racial Discrimination
specifically reminded the Republic of Korea of the Committee’s “general recommendation no.
189
190
Id. ay page 6, para. 24.
191
See 2007 UN CERD Press Release supra note 110.
192
of Korea, 29 May 2008; page 4, para. 5. (Emphasis added). A/HRC/8/40; A/HRC/WG.6/2/L.6. Available at:
193
See 2006 CERD Report supra note 142, page 7, para. 27.
52
30 (2004) on non-citizens, and recommend[ed] that [the Republic of Korea] take all
appropriate legislative and other measures to guarantee equality between citizens and non-
citizens.”194 The Committee’s General Recommendation No. 30 on Discrimination Against
Non Citizens provides the appropriate standard for determining whether or not the E-2 visa
requirements constitute “unreasonable discrimination” under Korean law. The relevant
provision states that:
Under the Convention, differential treatment based on citizenship or

immigration status will constitute discrimination if the criteria for such
differentiation, judged in the light of the objectives and purposes of the
convention, are not applied pursuant to a legitimate aim, and are not
proportional to the achievement of this aim.195
As explained in the introduction, seen for what it is, the aim of the E-2 visa policy
was to give a panicked and xenophobic public the illusion of protection through a widely
publicized crackdown on foreign English teachers in Korea. Such an aim fails to serve the
public health and welfare in numerous ways, as has been described. However, of particular
significance to this analysis, the intent of the E-2 visa policy was clearly discriminatory, and
state goals that serve no purpose but discrimination can never be legitimate. The E-2 visa
policy was set up with the purpose of discriminating against non-citizens in hope that this
ancient and misguided method196 would provide the public with some short-term solace.197
In the long-term, of course, Koreans have decided that it is in their best interests to
194
of Racial Discrimination: Concluding Observations, South Korea, 17 August 2007; page 3, para. 14.
195
CERD, General Recommendation No. 30, supra note 12, page 2, para. 4. (Emphasis added). See also
Committee on the Elimination of Racial Discrimination, General Recommendation No. 14, Definition of
Discrimination (Art. 1, par. 1) para. 1 (1993) (stating that “A distinction is contrary to the Convention if it has
either the purpose or effect of impairing particular rights and freedoms.”). Available at
http://www.bayefsky.com/general/cerd_genrecom_14.php
196
The E-2 visa policy and proposed xenophobic legislation is reminiscent of Taewongun’s ancient “stone
markers set up on the main thoroughfare in Seoul and at other important sites throughout the country, incised
with this admonition: ‘Western barbarians invade our land.’” Carter Eckert, Ki-Baik Lee, Young Lew, Michael
Robinson, Edward W. Wagner, Korea Old and New: A History (Harvard Korea Institute), at 197 (1991).
197
See “불법 원어민 회화강사 더 이상 설 곳 없다,” Ministry of Justice, March 15, 2007 supra note 28.
(stating “thanks to measures introduced on native English teachers by the Ministry of Justice, the anxiety of
citizens . . . is expected to be alleviated.”)
53
attract foreigners “to become permanent members of society.”198 Indeed, the Ministry of
Justice has charged itself with “creat[ing] a mature multicultural society that respects the
human rights of foreigners” by “pushing for a proactive immigration policy that shifts the
focus from regulation and control to openness and exchange.”199
Creating “an open society for all,” however, does not mean creating a society where
the rights of children are not protected. And despite discriminatory comments by public
officials and community leaders,200 it must be recalled that foreigners residing in Korea do
indeed care about the children of this nation; in fact, many are parents of a new generation of
Korean children. Everyone residing in the “mature multicultural society” that Korea is
struggling to become has a strong interest in protecting children in Korea.
A legitimate state aim can limit rights
While the goal of discrimination cannot accomplish a limitation of rights, a legitimate
aim can, and protecting children is clearly a legitimate aim for the state. In the interests of
protecting the human rights of children, the government can limit the rights of individuals
who are responsible for the care of children if this is necessary to ensure they receive the
proper care.201
198
Supra note 120 section 1-1.
199
See “Korea Breaking Down Walls of Discrimination,” Korea Times, February 24, 2009. (Minister of Justice
Kim Kyung-han stating: “‘We will create an open society for all.’ This is one of the 100 policy goals of the Lee
Myung-bak government. Since its launch, the government has been pushing for a proactive immigration policy
that shifts the focus from regulation and control to openness and exchange. Our challenge is to strengthen
national competitiveness by opening our borders to all people with talent and to create a mature multicultural
society that respects the human rights of foreigners. In the process, we must also prevent any negative side
effects of our openness policy by ensuring everyone in Korea abides by the law.”) Available at
http://www.koreatimes.co.kr/www/news/special/2009/05/270_40178.html
200
See e.g. “Korean Teachers Substituting for Native Speakers in Incheon,” Korea Times, March 13, 2009.
(Incheon Office of Education official Koo Young-sun stating “foreign teachers . . . are not ethically qualified to
treat children.”) Available at
See also, e.g. “IGSE to Nurture Top Quality English Teachers,” Korea Times, April 22, 2009.
(International Graduate School of English President Park Nahm-sheik “[Native] English speakers don’t have
much affection toward our children because they came here to earn money and they often cause problems . . . If
we need native English speakers, it would be better inviting young ethnic Koreans.”) Available at
201
Article 37(2) of the Constitution of Korea allows for the right of individuals to be limited, when it is
“necessary for national security, the maintenance of law and order or for public welfare”– in other words, only
54
The Korean legal analysis occurs within the “civil law” context; however, foreign
English teachers coming from “common law” jurisdictions (the United States, Canada,
England, Australia, New Zealand, Ireland, and South Africa) are familiar with the closely
related legal doctrine of in loco parentis, which requires the same type of analysis.202 This
doctrine says that when someone, such as a teacher, stands “in the place of a parent” and
provides for the care and protection of children, the responsibility is so great that government
may impose special duties and even limit rights if necessary to ensure that children receive
the proper care. Because of the unique role that teachers play in the lives of school children,
the in loco parentis principle imposes special obligations upon them. In the United States,
for example, the in loco parentis principle has been used to require teachers of children to
undergo criminal background checks203 and even testing for illegal drugs.204
Many teachers in Korea are in positions where they must assume responsibility for the
care of children. Therefore, the Korean civil law “public welfare” approach may succeed in
limiting the rights of teachers of children in Korea and requiring them to undergo criminal
background checks and tests for illegal drugs, just as the in loco parentis approach may
succeed in requiring the same of teachers of children in the United States. However, as
explained, a valid law of the proper status would first be required (e.g. a statute or act, not a
regulation or policy memo). Next, in order to avoid a prima facie case of discrimination, the
law requiring the background checks and drug tests would have to be required equally of all
when it is “necessary” for a legitimate aim. Protection of the human rights of children clearly qualifies as a
legitimate “public welfare” aim in this analysis supra note 11. (Emphasis added).
202
For the Korean law analysis see section 2(F) infra “If an equal standard were in place, what should it require
and what will the law allow?”
203
See e.g. Henry v. Earhart, 553 A.2d 124 (R.I. 1989) (upholding criminal background checks of
schoolteachers). For a discussion of the constitutionality of criminal background checks for teachers in the U.S.,
see Christina Buschmann, Mandatory Fingerprinting of Public School Teachers: Facilitating Background
Checks or Infringing on Individuals’ Constitutional Rights?, 11 Wm. & Mary Bill Rts. J. 1273 (2003).
204
See e.g. Knox County Education Association v. Knox County Board of Education, 158 F.3d 361 (6th Cir.
1998) and Crager v. Board of Education of Knott County, 313 F.Supp.2d 690 (E.D.Ky. April 8, 2004)
(upholding drug testing of teachers.) But cf. Lanier v. City of Woodburn, No. 06-35262 (9th Cir. Mar. 13, 2008)
(finding drug testing an unreasonable search when applied to an individual seeking a part-time librarian position
with limited interaction with children.)
55
teachers – regardless of their race, citizenship, or immigration status. Under Korean law,
the CERD requires that “once a non-citizen has established a prima facie case that he or she
has been a victim of . . . discrimination, it shall be for the respondent [i.e. the MOJ] to
provide evidence of an objective and reasonable justification for the differential treatment.”205
Evidence of an objective and reasonable justification for the imposition of the discriminatory
E-2 visa requirements has not been provided by the MOJ; and indeed, as demonstrated in the
first section, such evidence is lacking.
Differential treatment based on both citizenship and immigration status occurs in the
context of the E-2 visa requirements. Teachers of children with Korean citizenship206 and
non-citizen teachers of children with a different immigration status207 are exempt from the
E-2 requirements.
205
CERD General Recommendation 30 supra note 12, page 4, para. 24. (Emphasis added).
206
The government does not require Korean citizen teachers of children to submit to HIV testing, drug testing,
nor are criminal background checks or academic verification required in many cases, particularly where
individuals are employed in private language institutes. This report does not advocate compulsory HIV or drug
for any teachers. Teachers of children, however, should be required to submit criminal background checks of
sufficient scrutiny and authenticity rather than the current pro forma requirements. “'여제자 성폭행'..충북 교육
계 파문,”(Serious Loopholes in Background Checks for Korean Teachers), Yonhap, April 7, 2009. (Reporting
“31-year old Mr. Min, who was working as a teacher in a middle school . . . was arrested . . . for sexually
assaulting a girl who had run away from home after taking her to a motel . . . and for sexually assaulting another
girl in a karaoke room a month later . . . The law allowed Mr. Min to work at first this school, then that school,
despite his crowded criminal history. One educational authority said, ‘the law needs to be reformed so that
teachers teaching students are held to the highest ethical standards through broader criminal background
checks.’”) Available at
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=001&aid=0002596104 For an
English translation, see http://koreabeat.com/?p=4376 Furthermore, due diligence academic verification should
be required of all teachers and professors. See also, e.g. “Arrest Warrant for Disgraced Curator Rejected,” Korea
Times, September 18, 2007. (Reporting that “Shin [Jeong-ah] forged her diplomas that appeared to show she
obtained a Ph.D. at Yale and degrees from the University of Kansas, and was appointed as an assistant professor
at Dongguk University”). Available at
http://www.koreatimes.co.kr/www/news/nation/nation_view.asp?newsIdx=10432&categoryCode=117
207
The government does not require non-citizen teachers of children holding visas statuses other than E-2 to
submit to HIV testing, drug testing, nor are criminal background checks or academic verification required in
many cases, particularly where individuals are employed in private language institutes. This report does not
advocate that HIV or drug tests should be required of any teachers. Teachers of children, however, should be
required to submit criminal background checks of sufficient scrutiny and authenticity; and due diligence
academic verification should be required of all teachers and professors. The lax perfunctory requirements
established by the government have been an embarrassment to the non-citizen community and have provided
fuel to the “foreign teachers are unqualified” arguments disingenuously put forward by public officials who are
themselves responsible for creating the standards. See e.g. “32% of Native English Teachers Found
Unqualified,” Korea Times, September 16, 2007. Available at
Lack of criminal background checks have also put children at risk. See e.g. “South Korea arrests man sought by
FBI for 10 years,” Reuters, March 19, 2008. Available at
56
The CERD will allow for differential treatment based on citizenship or immigration
status in some cases. In examining the applicable non-discrimination standard under
international law, the Seminar on Exclusion, Equality Before the Law and Non-
discrimination organized by the Council of Europe in 1994 noted that:
Equality does not necessarily mean identical treatment in every

instance. A differentiation does not constitute discrimination if the aim
is to achieve a purpose which is legitimate and if the criteria used are
reasonable and objective . . . Only differentiation which is not factually
justified is discriminatory.208
The Human Rights Committee, in examining the parallel non-discrimination clause209 of the
International Covenant on Civil and Political Rights, also noted “its constant jurisprudence
that not all distinctions made by a State party’s law are inconsistent with this [non-
discrimination] provision, if they are justified on reasonable and objective grounds.”210
As available data shows that the criminal offenses sought to be prevented by the E-2
policy are as likely to be committed by Korean citizen teachers as anyone, there is clearly a
lack of reasonable and objective grounds for differentiating between citizen teachers and
foreign teachers. If the Korean government is interested in improving the protection of
“children and young students,” then the first question to ask is: how are these “children and
young students” likely to be harmed? As Korean citizen teachers present as much of a
http://www.reuters.com/article/topNews/idUSSEO23418820080319?feedType=RSS&feedName=topNews
208
UN Sub-Commission on the Promotion and Protection of Human Rights, The rights of non-citizens:
Preliminary report of the Special Rapporteur, Mr. David Weissbrodt, 6 June 2001, page 24, para. 122.
E/CN.4/Sub.2/2001/20. (Emphasis added). Available at: http://www.unhcr.org/refworld/docid/3d5a2cce7.html
(citing Exclusion, Equality Before the Law and Non-Discrimination. Proceedings of a seminar organized by the
Secretariat General of the Council of Europe in cooperation with the International Center for Sociological,
Criminal and Penitential Research and Studies (INTERCENTER) of Messina, Italy (Taormina Mare, Italy, 29
September - 1 October 1994), p. 135.)
209
ICCPR, Article 26 supra note 11. While the ROK has declared reservations to the ICCPR (i.e. Articles 14
and 22), there is no reservation to Article 26, which is regarded by the Republic of Korea “as having the same
effect as domestic law without requiring additional legislation.” See UN Human Rights Committee (HRC), UN
Human Rights Committee: Third Periodic Report, Republic of Korea, 21 February 2005, page 6, para.11
CCPR/C/KOR/2005/3. Available at: http://www.unhcr.org/refworld/docid/43f2ff650.html
210
Mümtaz Karakurt v. Austria. CCPR/C/74/D/965/2000. UN Human Rights Committee (HRC). 29 April 2002.
(Emphasis added.) Available at: http://www.unhcr.org/refworld/docid/3f588ef13.html
Human Rights Committee citing Broeks v The Netherlands (Communication 172/1984), Sprenger v The
Netherlands (Communication 395/1990) and Kavanagh v Ireland (819/1998). See also, e.g. Cheban v. Russian
Federation.
57
threat to Korean “children and young students” as anyone, excluding them from precaution-
ary procedures has no reasonable, objective, or factual basis. If increased scrutiny is
warranted for foreign teachers, then it is clearly warranted for Korean teachers as well and
standards should be applied equally.211
211
There is a lack of reasonable and objective criteria for differentiating between non-citizens teachers based on
immigration status, for example those teaching children on “professor visas” (E-1), Korean spouse visas (F-2),
ethnic Korean visas (F-4), and others. It is important to note, however, that while allowing F-2 and F-4 visa
foreign English teachers to be exempt from academic verification and criminal background check requirements
is discriminatory in the employment context where such checks provide legitimate protections; the F-2 and the
F-4 visas in themselves do not constitute discrimination. In both cases, the criteria used for differentiation in
creating the F-2 and F-4 visa categories are reasonable, objective and factually justified. Both ethnic Korean
non-citizens and non-citizens married to Koreans share closer ties to the Republic of Korea. In the case of non-
citizens married to Koreans, they have familial ties to Korea in the form of their citizen husband or wife and any
children or in-laws. Creating a visa to allow individuals of this category to maintain ties to immediate family by
residing in the country is clearly a legitimate aim, indeed these individuals have a legal right to this status. As
ICCPR General Comment 15 paragraph 5 states: “in certain circumstances an alien may enjoy the protection of
the Covenant even in relation to entry or residence, for example, when . . . respect for family life arise.” supra
note 130. (Emphasis added). In the case of non-citizen ethnic Koreans, even if they do not have immediate
familial ties to Korea (although they often do), the criteria used for differentiation are still reasonable, objective
and factually justified. An example of similar preferential immigration rules were examined by the Inter-
American Court of Human Rights in 1984. See UN Sub-Commission on the Promotion and Protection of
Human Rights, Prevention Of Discrimination; The Rights Of Non-Citizens; Final Report Of The Special
Rapporteur, Mr. David Weissbrodt, Submitted In Accordance With Sub-Commission Decision 2000/103,
Commission Resolution 2000/104 And Economic And Social Council Decision 2000/283; Fifty-Fifth Session;
item 5 Of The Provisional Agenda, 26 May 2003, page 10, para.23. E/CN.4/Sub.2/2003/23. (citing the Advisory
Opinion on the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa
Rica (OC- 4/84), 19 January 1984, para. 60.) Available at http://www.unhcr.org/refworld/docid/3f46114c4.html
The Court “found non-discriminatory a proposed amendment to the naturalization provisions of the Constitution
of Costa Rica that established preferential naturalization rules for ‘nationals of the other Central American
countries, Spaniards and Ibero-Americans’, because they ‘share much closer historical, cultural and spiritual
bonds with the people of Costa Rica’.” Id. Similarly, ethnic Koreans can be said to have “closer historical,
cultural and spiritual bonds” with Korea, and creating a visa to allow individuals of this category to maintain or
further develop such bonds is clearly a legitimate aim. However, the Court noted that problems occur when “the
difference in treatment . . . lead[s] to situations which are contrary to justice, to reason or to the nature of
things.” Id. The case of David Hyun Nam presents an example of such a situation. See “South Korea arrests man
sought by FBI for 10 years,” Reuters, March 19, 2008. (“Korean-American [David Nam] suspected of murder
and wanted by the Federal Bureau of Investigation after he fled the United States 10 years ago and went to
South Korea . . . was apprehended in suburban Seoul, where he had been teaching English, police said . . . ‘As a
native English speaker it would have been very easy for Nam to get a job as a teacher and make a living,’ a
police investigator said.”) Available at http://www.reuters.com/article/topNews/idUSSEO23418820080319
Thus, to ensure equal standards of protection apply for all those who work with children, the CERD’s,
“guarantees against racial discrimination [should] apply to non-citizens regardless of their immigration status.”
As Jason Kim explained in the Korea Times, “the Korean government began requiring E-2 visa applicants to
submit a certified criminal record and health check, as a reaction against the high-profile arrest of convicted
pedophile, Christopher Neil, in Thailand . . . Not only were these requirements onerous, but also inherently
unfair, since teachers on F-1 [sic] (professor), F-2 (spouse of Korean national) and F-4 (ethnic Korean) were
exempt from the requirement. This rule clearly discriminates based on ethnic origin and professional status. It
assumes that a Korean-American English teacher is less of a threat to a Korean child than a white-American
English teacher. Just because his or her parents happened to be Korean? It's unjustifiable.” See “Illusion about
Protection,” Korea Times, February 16, 2009. Available at
http://www.koreatimes.co.kr/www/news/opinon/2009/02/137_39640.html
58
F. If an equal standard were in place, what should it require and what will the
law allow?
In the absence of discrimination, it remains to be seen whether the law can require
teachers to submit to academic verification checks, criminal background checks, drug tests,
and HIV tests. As each of the requirements implicate the Constitutional rights to privacy
and the presumption of innocence, Korean law requires that a “balancing test” be performed,
which balances the governments interests and the rights of individuals by considering 1) the
legitimacy of the government aim; 2) the proper fit of the government means to the purpose;
and 3) the restrictiveness of the measure on individual rights.212
Background checks
Background checks require teachers to ‘prove themselves innocent’ by revealing pri-
vate information that they may not want others to know or consider irrelevant to their
employment. Nevertheless, teachers’ rights may be limited where there is a compelling
government interest. Academic credential verification, for example, may constitute a
justified imposition on individual rights. The process of academic credential verification
involves a certain amount of scrutiny into the personal affairs of individuals and may convey
an attitude of mistrust or impose some inconvenience, especially if the verification process is
complex, time-consuming, or expensive. However, as long as the process is fair, not unduly
burdensome, applied equally to all seeking the same type of employment and is pursuant to a
legitimate aim, the imposition can be justified under the “balancing test.”213
In the case of criminal background checks, the process requires scrutiny of highly
personal information, as well as putting teachers in the position of having to ‘prove
themselves innocent’. Nevertheless, as in the case of academic qualification verification,
212
See 권영성, 헌법원론 338-40 (4th. ed. 2001).
213
A verified degree from an accredited four-year university of an English speaking country (a requirement of
the E-2 visa), for example, presents a strong indication that the graduate has achieved a certain level of mastery
of the English language, and mastery of the English language corresponds to the duties performed by E-2 visa
English teachers. See “Foreign Language Instructor (E-2) . . . Application Eligibility” requirements for a “a
bachelor's degree or higher” for “[n]atives of [a] country whose mother language is [English]” supra note 27.
59
the imposition on the rights of teachers can generally be justified if the state has a legitimate
interest in excluding individuals from positions where they may pose a threat to children.
Foreign teachers of English, as well as citizen teachers, recognize this legitimate interest and
are generally willing to comply with background checks.
In Korea, however, the problem has rarely been the imposition of academic or crimi-
nal background checks, but the nature of the checks. The mere receipt of a required
document offers little protection for children and schools if the expertise necessary to verify
and authenticate it is lacking, or if the document contains information of no value. The
government is often focused on the pro forma element of the requirement qua requirement to
the exclusion of its substantive purpose. There is a preoccupation with shiny gold apostilles,
the raised seals of embassy affidavits, or any document bearing the semblance of officialdom,
and a relative indifference to the value of the information conveyed therein. As a result,
teachers find themselves subject to background checks of wildly varying scrutiny and
burdensomeness214 and of dubious value. In other words, the government has no idea what
an academic or criminal background checks should really entail (and has no particular
interest in finding out), it just knows it wants one. However, until this perspective is
corrected, it won’t matter how many requirements the government creates for teachers:
children and schools will continue to go unprotected.
Background checks are conducted at varying levels of due diligence and scrutiny.215
While even the best of them may not be capable of identifying every instance of relevant
misconduct or ineligibility, the development of a comprehensive background-screening
214
An example is the “vulnerable sector screening” (VSS) check recently required of Canadians, while
Americans continue to be allowed to submit “local police station” checks. The VSS check is a background
check of high scrutiny designed for use in Canada and was unavailable overseas. It was, nevertheless,
introduced as a requirement for Canadians already residing in Korea. See e.g. “Korea Needs Long-Term Plan for
Visa Requirements," Korea Times, November 18, 2008. Available at
215
See e.g. Jackie Walters, National Criminal Background Checks: Myths, Realities & Resources, Law Library
Lights, Vol. 50, No. 3 (2007). Available at http://www.virtualchase.com/articles/criminal_checks_national.html
60
standard for teachers of children, and the necessary expertise to meet that standard, offers a
powerful means for managing the risk.216 Instead of developing such a standard and the
means achieving it, however, the Korean government has decided to pursue a policy of
discrimination while paying mere lip service to the goal of “protect[ing] young students and
children.”
Due process (procedural fairness), and the protection of personal data
Clear standards for teacher qualifications must be established instead of repeatedly
profiling and stigmatizing foreign English teachers as professionally 217 and ethically 218
“unqualified.” Foreign English teachers are recruited by the government and private
institutions on the basis of their marketable appearance as authentic “native speakers,” and
are then criticized for these same qualities. If the government is interested in establishing
academic qualifications beyond appearing to possess “native speaking ability,” it should
indentify, articulate and promulgate the appropriate standard.
As for the more elusive “ethical” criterion, rather than suggesting that Korean ethnic-
ity219 presents the only suitable qualification, a clear list of excludable offenses as part of the
216
For a comprehensive discussion of background checks in academia see Barbara A. Lee, Who are you?
Fraudulent Credentials and Background Checks in Academe, The Journal of College and University Law, Vol.
32, No. 3 (2006). Available at http://www.eapdlaw.com/files/News/bff73f8e-12fb-4395-a943-
b322ffcd7d48/Presentation/NewsAttachment/7090e089-247e-44dd-a047-
b366eca8d9e7/Who%20Are%20You_Fraudulent%20credentials_Barbara%20Lee.pdf
217
See Policy Memo supra note 6 (stating “those unqualified E2 teaching visa holders”). See also, e.g. “32% of
Native English Teachers Found Unqualified,” Korea Times, September 16, 2007. (“One third of foreigners
teaching English in Korea were found to have taught without appropriate certificates, said Rep. Lee Kyung-sook
of the United New Democratic Party (UNDP).” Available at
Targeting foreign English teachers as “unqualified” in comparison to Korean English teachers is unjustified
considering the government’s own assessments of Korean teachers of English. See e.g. “[Korean] English
Teachers to Go Through Quality Training,” Korea Times, March 19, 2008. (Reporting that “According to the
Education Ministry as of 2005, more than half of [Korean citizen] English teachers were unable to conduct
classes in English among 32,482 teachers at elementary and secondary.” Available at
218
See e.g. “Korean Teachers Substituting for Native Speakers in Incheon,” Korea Times, March 13, 2009.
(Incheon Office of Education official Koo Young-sun stating “foreign teachers . . . are not ethically qualified to
treat children.”) Available at
219
“IGSE to Nurture Top Quality English Teachers,” Korea Times, April 22, 2009.
61
criminal background screening process should be made available. Other nations have
similarly vague ethical eligibility standards in place for non-citizens (for example, the
troublesome “moral turpitude” criterion for purposes of U.S. immigration law),220 however, a
list of excludable offenses and misconduct (including considerations of the age of the
offender and the date of the offense) are provided in order to clarify the standard. Korean
immigration law provides that non-citizens “detrimental to [the] . . . good morals”221 of the
Republic may be denied visas; however, the KIS has yet to provide a clear list of excludable
offenses under its E-2 visa criminal background check requirement, which would help to
clarify the “ethical eligibility” standard.
A common example is “drunk driving” arrests. For most E-2 visa holders, an arrest
record for “drunk driving” is not a bar to receiving a visa. However, some have been
requested to provide an “apology letter” to immigration officials before a visa was granted,
while others have been denied visas for this offense.222 In one instance, the author of this
report was consulted when an immigration official had refused to issue an E-2 visa because,
next to a charge for “drunk driving” on the applicant’s criminal record, the word “dismissed”
appeared. The immigration official refusing the visa had maintained that the term meant the
applicant had been “dismissed” from her job because of the arrest, not that the arrest itself
had been “dismissed.” E-2 visa holders in Korea are familiar with such examples as
language difficulties and lack of expertise in evaluating documents has led to a lugubrious
process of arbitrariness and unbounded discretion.
(International Graduate School of English President Park Nahm-sheik stating “[Native] English speakers don’t
have much affection toward our children because they came here to earn money and they often cause problems .
. . If we need native English speakers, it would be better inviting young ethnic Koreans.”) Available at
220
See INA § 212(a)(2)(A)(i)(I) and (II). http://www.state.gov/documents/organization/86942.pdf
See also 9 FAM 40.21(a) N1.1 (Determining Ineligibility). Available at
http://www.state.gov/documents/organization/86942.pdf For a user friendly list of excludable offenses see
http://en.wikipedia.org/wiki/Moral_turpitude
221
Article 11(1)4, Immigration Control Act, Act No. 1289, March 5, 1963.
222
Information provided in interviews with the KIS and major foreign English teacher recruitment agencies in
Korea.
62
Further complicating the issue, E-2 visa holders providing highly personal informa-
tion are not accorded the proper level of data protection. Even where the government is
legitimately entitled to scrutinize personal information on non-citizens such as academic,
criminal and medical records, non-citizens have a corresponding legal right to the protection
of that data. The Act on the Protection of Personal Information Maintained by Public
Agencies has specific requirements for “the protection of private information managed by
computers of public agencies”;223 however, the KIS has no provided no indication of how
personal information of E-2 visa holders is processed, stored, transferred or whether
government required protections are in place.224 In addition to national law, the Republic of
Korea must familiarize itself with the laws of E-2 applicants’ sending countries, which may not
allow governments to transfer personal data on their citizens without guarantees of adequate
protections in the receiving country.225
Finally, in the process of receiving E-2 visa “health checks” at national hospitals in
Korea, foreign teachers are often not accorded the proper level of respect, hygiene, or
privacy.226 At the local level, in academic institutions across the country, foreign teachers’
223
See Article 1, Act on the Protection of Personal Information Maintained by Public Agencies, No. 4734
(1994).
224
Id.
225
See e.g. EU Directive 95/46/EC, (On the Protection of Individuals With Regard to the Processing of
Personal Data and on the Free Movement of Such Data), Chapter IV (Transfers of Personal Data to Third
Countries), Article 25(2) (stating “The adequacy of the level of protection afforded by a third country shall be
assessed in the light of all the circumstances surrounding a data transfer operation or set of data transfer
operations; particular consideration shall be given to the nature of the data, the purpose and duration of the
proposed processing operation or operations, the country of origin and country of final destination, the rules of
law, both general and sectoral, in force in the third country in question and the professional rules and security
measures which are complied with in that country.”) Any Article 26(1)(a) based derogation should place with
informed consent of the data subject with knowledge of the particular protections that she may be waiving in the
transfer. Available at http://www.cdt.org/privacy/eudirective/EU_Directive_.html
226
The author of this report received the following emails expressing concern over the lack of proper hygienic
procedures. The first email reads: “I have been living here for 11 years, and recently had to do all the checks . . .
Something, that I think deserves some attention if you do another article is the medical conditions at these
hospitals. 1) They line people up like cattle taking blood . . . nobody has gloves on or washes their hands. A
nurse told me that in training they do, but working they don't have time. It was so scary . . . 2) Also, next
somebody had to look in my mouth . . . I said ‘Aren't you going to wash your hands?’ He walked to a desk and
put on some used gloves and came back . . . If foreigners aren't diseased when they get here, they soon will be . .
. I don't want to loose my job, but I wanted to mention that Korea's medical standards are lacking and the whole
process was really stressful.” (Received in March 2009, on file with the author). The second email reads: “I
deeply resent the notion that simply because we are not Korean we are somehow dirty, less moral or are more
63
medical information is often disclosed to school principals, owners of private language
institutes, and Korean co-workers. In an interview with the author of this report, one E-2 visa
English teacher explained that she and her co-workers were assembled at their school to discuss
the results of the “health checks”. The school director, in halting English, pointed to the
foreign teachers in turn saying: “you, ok; you, ok; you, ok” etc., until the director reached the
woman saying “you, no.” Frightened, the woman asked whether he was referring to the HIV
test results, to which the director replied: “AIDS, no. Woman problem.” Similar occurrences
are not uncommon.
Drug tests
As explained, the imposition of drug tests for foreign teachers only is clearly dis-
criminatory where there exists no reasonable, objective and factual basis for the
differentiation. A similar attempt to drug test foreign English teachers only was made in
Japan in 1994. This policy, “originally targeting only foreign staffers,” however, was
recognized as discriminatory and “all employees [were asked] to undergo the tests.”227 The
NHRCK should recognize that this is an outcome that teachers in Korea, not currently
required to undergo testing, greatly dread and which may occur if Bill No. 3356 is enacted.
Notably, however, this is not what occurred in the Japanese case. In spite of the eventual
non-discriminatory application of the tests, the Osaka Bar Association released an opinion
recognizing the imposition on the rights to privacy and the presumption of innocence,
explaining that, “the examination was tantamount to a criminal investigation and the way the
likely to engage in the risky behaviour that would see us contracting HIV/AIDS or get into legal trouble over
drugs and, therefore, need to be checked regularly. If anyone can give me a factual basis for this belief, I’m
happy to change my mind. My objection is also hygienically based. Last year when I had my ‘dirty foreigner’
health check, they gave us a cup for the urine test with no lid. We all went and did our thing and took our
sample back to the doctor. He then put some into test tubes. At the same workspace, he then took blood - all of
this was done without washing his hands or using gloves.” (Received in May 2009, on file with the author).
227
See “NOVA teachers face off with school over drug tests,” Japan Times, 1994. Available at
http://www.generalunion.org/nova/archives/drug
64
examination was executed was a violation of the teachers’ right to privacy.”228 Thereafter,
the tests were dropped as a requirement.
Justifying the testing teachers for the use of illegal drugs is a serious imposition on the
rights to privacy and the presumption of innocence. In the relatively few jurisdictions where
the practice has been justified, it remains controversial. Where tests have been introduced
there have generally been reasonable grounds for doing so, for example, the arrests of
teachers with controlled substances.229 While foreign English teachers have been arrested
for cannabis in Korea, so have Korean teachers.230 In both cases, however, the scarcity of
arrests and the relative harmlessness of cannabis (in comparison with other illegal drugs) may
fail to justify restrictions of teachers’ rights under the balancing test required by the
Constitution. Furthermore, the drug tests currently imposed on foreign English teachers do
not test for cannabis but for “hard drugs,” such as methamphetamine (philopon), that foreign
English teachers had not been arrested for prior to the introduction of the tests. Neverthe-
less, there is some valid concern over the abuse of “hard drugs” by teachers in Korea. The
Narcotics Division of the Supreme Prosecutors’ Office, for example, recently announced the
arrests of several Korean high school teachers and the seizure of 606 grams of metham-
phetamine (philopon).231 Foreign English teachers have also recently been arrested for
228
See “Letter of Recommendation,” Osaka Bar Association, Chairman Uehara Yosuke, July 25, 1995.
Available at http://www.generalunion.org/News/155
229
In Hawaii, for example, the arrested of a teacher for the sale of methamphetamine led to a proposal for
statewide testing of public school teachers. See e.g. “Despite Agreement, Hawaii Teachers Resist Drug
Testing,” The Washington Post, December 21, 2008. (Reporting “Leilehua High School special education
teacher Lee Anzai, pleaded guilty to selling more than $40,000 worth of crystal methamphetamine to an
undercover agent.”) Available at http://www.washingtonpost.com/wp-
dyn/content/article/2008/12/20/AR2008122001864.html
230
See e.g. “대마 피운 교사, 뽕 맞은 목사,”Hankyoreh, May 9, 2009 (Reporting “prosecutor’s office’s
investigation found that Mr. Kim, a high school teacher, smoked 0.3 grams of marijuana.”). Available at
http://www.hani.co.kr/arti/society/society_general/353978.html For an English translation see
231
Id. (Reporting “crackdown on drugs resulted in the discovery of 56 current [Korean] high school teachers
and ministers, the arrest of 23 people, and the seizure of 606 grams of methamphetamine”).
65
“hard drugs,” in their case MDMA (ecstasy).232
Whether these arrests indicate a serious drug problem in the teaching community that
puts children at risk, and requires protective measures such as compulsory drug testing for
teachers, has yet to be determined. In the final analysis, if the government wants to
introduce drug testing of teachers as a means of achieving the legitimate aim of protecting
students, the severe restrictions on the rights of teachers must be given due consideration
within the framework of the balancing test required by the Constitution.
HIV/AIDS tests
As explained, compulsory HIV tests, designed solely for the purpose of excluding
people living with HIV/AIDS from working as teachers (and in the case of foreigners,
deporting them from the country without treatment or counseling), constitutes discrimination
on the basis of medical conditions and must therefore fail. Only where the government can
demonstrate that the medical condition actually prevents an individual from doing their job,
or presents a direct threat of contagion, can it hope to exclude indivduals on the basis of
medical conditions.233
In 2003, the NHRCK faced the same issue in its investigation of government hiring
practices requiring the disclosure of hepatitis B status. In its opinion, entitled “Hiring-
related medical exams that single out hepatitis B carriers constitutes discrimination,” the
232
See “초등교 원어민 영어강사 마약 투약 '충격',” Yonhap News, April 16, 2009. (Reporting on the arrest
of two foreign English teachers for MDMA (ecstasy)) Available at
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=001&aid=0002611841
233
See e.g. School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1987) (rejecting summary dismissal of
HIV positive teachers and instead requiring a “direct threat test” to determine if students were actually at risk of
infection. The direct threat test involves a determination of the following four factors: 1) the nature of the risk,
2) the severity of that risk, 3) the duration of the contagious period and 4) the probability of transmission.) See
also, e.g. Chalk v. United States Dist. Court, 840 F.2d 701 (9th Cir. 1988) (rejecting the dismissal of an HIV
positive teachers and finding there was no significant danger to students in the school environment.) Of
particular significance to the E-2 visa policy, the Chalk court recognized that the issue of AIDS in the classroom
was of great public interest, but refused to recognize the symbolic aim of easing the fear and apprehension of the
public as a legitimate government aim that would allow excluding teachers with HIV/AIDS teachers from the
classroom. For a comprehensive discussion of the subject see “AIDS IN THE CLASSROOM,” James A. Keith,
58 Miss. L.J. 349 (1988). Notably, current discussion of HIV testing in the classroom context often focuses on
the testing of child students rather than teachers. See e.g. “Human Bites in the Classroom: Incidence, Treatment,
and Complications,” Helen Acree Conlon, The Journal of School Nursing, Volume 23, Number 4 (2007).
Available at http://jsn.sagepub.com/cgi/reprint/23/4/197
66
NHRCK recommended that “the Minister of Government Administration and Home Affairs .
. . amend or rescind relevant articles of the ‘Regulation on Medical Examinations for
Government New Hires’. . . that violate articles 11 and 15 of the Korean Constitution by
violating the right of equality [by discriminating on the basis of medical conditions] and the
right to free choice of occupation for hepatitis B carriers.”234 The NHRCK opinion goes on
to explain:
While hepatitis B is a disease that can be transmitted prenatally from

mother to fetus, or through sexual contact or blood transfusion, it is not
a disease that is transmitted through ordinary work life. Furthermore,
were it to be known throughout the workplace that a person was a car-
rier of hepatitis B, that person may be subject to discrimination on a
daily basis, owing to the lack of accurate understanding on the part of
potentially ill-informed colleagues as to the exact nature of transmittal.
Thus, one could say that it would be illogical if not inappropriate to
undertake hepatitis B testing for new government appointees based on
concerns about the possibility of spreading disease. Even supposing
that the appointee had contracted hepatitis B, that in itself would not
necessarily mean that his or her condition would deteriorate and impair
work ability by developing into chronic hepatitis or liver cirrhosis
since such cases are rare.235
The NHRCK should issue an opinion stating the same about HIV/AIDS in the employment
context. Indeed, in the words of the NHRCK, “one could say that it would be illogical if not
inappropriate” for the NHRCK not to issue such an opinion, especially considering that the
Prevention of Contagious Diseases Act of Korea classifies hepatitis B as a “Type 2”
contagious disease, while HIV/AIDS is classified as a less contagious “Type 3” disease.236
The NHRCK must immediately release an official opinion stating the E-2 visa HIV tests
constitute discrimination on the basis of medical conditions.
234
See “Hiring-related medical exams that single out hepatitis B carriers constitutes discrimination,” National
Human Rights Commission of Korea, August 29, 2006. (Emphasis added). Available at
http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release.
235
Id.
236
See Article 2 (Definitions) Prevention of Contagious Diseases Act, No. 308 (1954), last amended by Act No.
7148 (2004).
67
3. Equal Standards for Teachers Means Greater Protections for Children in Korea
Conclusion
The NHRCK has the unique opportunity to shift the focus of the current discussion
from xenophobic hysteria over “dangerous foreign English teachers” to raising the standard
of human rights protection for children in the Republic of Korea. In its opinion, the
NHRCK should stress the importance of creating a single, unified, high standard of
protection for the human rights of children in the Republic of Korea. A standard of
protection that applies equally to all teachers of children regardless of citizenship or
immigration status will raise, not lower, the standard of protection for the human rights of
children in the Republic of Korea. Toward that end, the NHRCK should recommend that all
teachers (non-citizen and citizen) receive human rights education on the rights of children
and abuse prevention. Teachers should be educated on how to prevent abuse and how to
report abuse when they see it. Moreover, the NHRCK should also recommend that children
in the Republic of Korea receive appropriate education on their human rights and are taught
how to identify and report abuse when it happens. Children and students in Korea often do
not know where to turn if sexual or physical abuse occurs. They are often afraid they will
be blamed for the abuses of others. Children must be educated about safe and effective
remedies that exist for them to seek help.
The goal of the NHRCK must be to raise the standard of protection for children in
Korea in an enlightened and effective manner, taking into consideration the human rights of
all parties concerned. By insisting there is a single, unified standard of protection that
applies equally to all teachers of children regardless of citizenship or immigration status, the
NHRCK is insisting that the standard of protection is raised, not lowered.
68
Key Recommendations
• Issue an immediate opinion stating the E-2 visa policy and proposed legislation
constitutes discrimination and violates the fundamental human rights of non-citizens
residing in the Republic of Korea.
• Recommend that the government issue an apology and begin discussions on appropri-
ate remedies for human rights violations that have occurred.
• Issue a statement condemning the continued targeting, stigmatization and profiling of
non-citizens by politicians, officials, educators and the media, on the Internet and
other electronic communications networks and in society at large.
• Organize a conference on xenophobia and the rights of non-citizens residing in the
Republic of Korea.
• Issue a statement reaffirming the right of non-citizen groups, associations, and NGOs
in the Republic of Korea to work to protect the human rights of their members.
69

NHRCK Report 2

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Kyung Hee University School of Law

Working Paper, May 2009

DISCRIMINATION AGAINST NON-CITIZENS

1. An Introduction to the E-2 Visa Policy

“language instructor[s] at foreign language institutions or educational facilities (primary

school and above).”1

Nationality 2005 2006 2007 2008

(3%), and Irish (2%).

In November 2007, the Ministry of Justice (“MOJ”) introduced a policy memorandum

entitled “원어민 회화지도 (E-2) 사증제도 개선 안내” (“Policy Memo”).5 On December

News media coverage about those unqualified E2 teaching visa holders.

their home countries and to 4) provide verification of their academic credentials.

As will be explained, irresponsible media reports (many of them generated by public

entitled “원어민회화지도 (E-2) 사증제도개선안내.”

presumption of innocence;11 moreover, it involves a selection process that implicates the

right to non-discrimination on the grounds of medical history.14 Furthermore, the entire

rule of law principle.

Rights (“ICCPR”).15 The ICCPR is of additional Constitutional concern in the context of

Siracusa Principles on the Limitation and Derogation Provisions in the International

ant to that legitimate aim. The “proportionality principle” (비례의원칙) 21 of Korean

tion) on the part of the government.

country tests of foreigners “after entering Korea.”27

C. The xenophobic origins of the E-2 visa policy.

Secretary-General of Amnesty International, deserve special attention:

[W]hen we feel threatened – whether about our physical well-being or

suspicion, mistrust, and xenophobia.

• Foreign English teachers are more likely to use illegal drugs.

• In September 2007, No Cut News published an article entitled “Korea is a ‘Per-

• In January 2008, Dailian News, quoted an Incheon Yeon-su Police Department

added). Available at http://english.chosun.com/w21data/html/news/200706/200706070011.html

• In February 2005, the English Chosun published an article discussing an “SBS

• In May 2006, YTN News reported on an incident at an English language camp in

statements seriously, it must, nevertheless, be asked whether there is any reasonable or

D. The lack of data on foreign English teachers.

reasons for the new changes. The statement reads:

Some E2 teaching visa holders in Korea were caught for fraudulent

What people don't realize is that this is a knee-jerk reaction based on a

us portrayed as criminal, drug-using pedophiles.”51 Yet another English teacher complained

of reporting that was “racially biased and fear mongering.”52

decided to validate it.53

E. Foreign English teachers and drug crimes.

have built up to dangerous levels in recent years.”55

the Narcotics Division of the Supreme Prosecutors’ Office.

Drug Arrests of Foreign English Teachers in Korea57

“cannabinoid check” is understandable.

role in facilitating human rights education.”63

Human rights education for . . . media constitutes one of the major

authorities of their human rights obligations.

F. Foreign English teachers and sex crimes.

possible to extrapolate some basic facts.

Statistics on Korean citizens are included for comparison.

3.5% rate among Korean citizens.”72

expressly prohibit corporal punishment in schools . . . and implement educational measures

promoting positive and non-violent forms of discipline.”80

Assemblyperson Kwon Chul-hyun listing 1,733 charges of “misconduct” by Korean teachers

and calling for urgent measures.81

If the Korean government is interested in improving the protection of “children and

teachers as well, and standards should be applied equally.

G. Foreign English teachers and HIV/AIDS.

HIV/AIDS awareness in Korea is extremely low. The Korea HIV/AIDS Information

Center (한국에이즈정보센터) is currently sponsoring a public campaign called “HUG

“Compared to AIDS, our prejudice about it is more frightening! HUG AIDS!”86