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1
Scrutinizing Rules for Foreigners in Korea:How Much Discrimination is Reasonable?
 Benjamin K. Wagner 
∗ 
 
Abstract
The International Convention on the Elimination of All Forms of Racial Discrimination(“ICERD”) promises to provide effective remedies against xenophobia and discrimination on thebasis of foreign nationality in Korea. The treaty has been under-utilized and its legal status and  proper role is largely unknown or misunderstood. Few appreciate the broad definition of “racial discrimination” under the ICERD and the implications for non-citizens. Even fewer are aware of the special relationship Korea maintains with the Committee on the Elimination of Racial Discrimination(“CERD”) because of its recognition of the competence of the CERD to receive complaints and makerecommendations under the optional Article 14 procedure.This article examines several real life contemporary scenarios under the ICERD analysis and contrasts results with other jurisdictions. In doing so this article hopes to encourage further study and utilization of the recommendations, observations and jurisprudence of the Committee on the Elimination of Racial Discrimination in deciding what equality will mean for the increasing number of foreigners who live in Korea.
Keywords:
International Convention on the Elimination of All Forms of Racial Discrimination,ICERD, Non-discrimination, Xenophobia, Foreigners, Citizenship, Noncitizens.
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∗
The author is an Assistant Professor of Law, Kyung Hee University School of Law, Korea (email:khu.lawschool@gmail.com). He received a J.D. in 2004 from the University of Hawai'i, William S. RichardsonSchool of Law. He is a U.S. attorney and member of the Hawai'i and Minnesota state bar associations.
Contents
I. Introduction
1. The scenarios2. Recognizing the multi-ethnic character of contemporary Korean society
II. Korea’s Special Relationship with the CERD
1. International law as an interpretive aid and gap filler 2. The status of the ICERD as domestic law3. The article 14 individual complaint procedure
III. Heightened Scrutiny for Distinctions Based on Citizenship
1. Herman v. Asahi Bank 2. Habassi v. Denmark 3. Quarantines for foreigners4. Rights properly reserved for citizens5. Foreign fathers to Korean children
IV. Conclusion
 
2
I. Introduction
1. The scenarios
A group of old women shuffle up to the subway ticket window to collect afree ticket provided by the Korean government for people over 65. But as Ms.Sonia Strawn reaches for one she is denied. Even though she has been a resident of Korea for “more than 40 years” – as a “foreigner” she is ineligible.
1
As Ms. Strawnexplains it:I pay taxes here, shop here, had babies here, work here and yet
―
 am soundly scolded by Korean subway ticket booth workers when Itry to pick up a small paper ticket to the subway just as the Koreangrandma ahead of me does. After all these years in Korea, do youknow how that makes me feel?
2
 Konrad Fischer, another elderly foreign resident of Korea, makes a similar point:If you are Korean and over 65, you get a discount, even free rideson the subway; but not foreigners coming to Korea or living inKorea. In other countries
―
I know by experience
―
like HongKong, New Zealand, Australia, Malaysia, Europe and Japan, when Igo there, I’m always asked whether or not I’m over 65 years old. Inthis case, I get a discount on trains, buses and at establishments likemuseums. Foreigners are treated the same way as native people.
 But not here in Korea.
3
 Are the incidents these seniors describe cases of discrimination or mere inconvenience?
Consider another scenario: A young newlywed couple dreaming of adowntown apartment in Seoul approaches a bank for a loan; yet, despite thehusband’s well paying job and permanent resident status, his application is denied because he is a “foreigner.” As Michael Stevens, a foreign resident married to aKorean national explains it, “foreign husbands [in Korea] are usually unable to getadequate bank loans in order to purchase homes or even a car in this country[because] . . . in the [Korean] banking system . . . foreigners are looked upon as

1
Sonia Reid Strawn, Editorial,
 How to Make Foreigners Feel Welcome Here
, The Korea Times, Mar.18, 2009.
2
 
 Id.
3
Konrad Fischer, Editorial,
 Friendly Korea
, The Korea Times, Mar. 12, 2009 (emphasis added).
 
3
 being a flight risk, as if we were criminals looking to steal the bank’s money.”
4
Mr.Stevens goes on to explain the troubling situation for foreign husbands in Korea ashe sees it:
For most it is also nearly impossible to receive a Korean credit card;even though many of us have a good credit rating in our homecountry and make the same or even more money than the averageKorean husband. Korea is very unfair to foreign men that have tosupport and raise a Korean family in this country. Most of us want to be good husbands and fathers, yet the government does nothing tohelp us provide adequate credit and housing for our families.
5
 Should the Korean government be doing more to ensure that foreign husbandsand fathers like Mr. Stevens have equal access to consumer credit and housing loans?Or should the rules for foreigners that some financial institutions have in place beconsidered reasonable safeguards against those who may flee the jurisdiction?Another foreign husband, the birth-father of a baby Korean girl, has alsotaken issue with the government’s treatment of international families living in Korea.Upon registering the birth of his newborn with the government office, Mike Yateswas shocked to discover that his name did not appear alongside the names of hisKorean wife and child on the nation’s family register. Enraged, Mr. Yates filed a petition with the government asking for the situation to be remedied. It reads in part:Our daughter holds both British and Korean citizenship, and her birth has been registered in both countries. In the UK, her birth certificate shows thename of both parents, regardless of the fact that my wife has no right toresidency in the UK. In Korea, this is not the case.
 
The
dong 
office [has]informed my wife that I may not be included as a parent to our daughter,despite the fact that my wife and I are legally married under Korean law.The reason given is that I am a foreigner . . . If I was Korean, my rights as afather would be secure.
6
 The official response from the Ministry of Public Administration and Securityexplained:
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4
Michael Stevens, Editorial,
Gender Equality for Foreign Husbands
, The Korea Times, Jun. 30, 2008.
5
 
 Id.
 
6
Ranting Englishman, http://yonguksaram.com/im-back-and-im-pissed.html (May 29, 2009) (emphasisadded).
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