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

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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 U.S.A. Canada U.K. South Africa Australia New Zealand Ireland Others2 TOTAL

2005 3,951 4,598 975 294 582 630 305 1,104 12,439

2006 5,372 4,870 1,367 451 679 701 332 1,229 15,001

2007 6,989 5,263 1,697 695 665 705 350 1,357 17,721

2008 8,890 5,029 1,673 971 646 643 322 1201 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

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.

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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 6

원어민 회화지도 (E-2) 사증제도 개선 안내, 법무부, 2007. 11. Included in the Annex.

“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/

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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 residents. 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

See “A brief history of the scapegoating of foreign English teachers in the Korean media,” for a comprehensive examination of over a decade of such reports. Available at http://populargusts.blogspot.com/2007/09/briefhistory-of-scapegoating-english.html 10 See 出入國管理法 일부개정법률안 (신학용의원 대표발의), No. 7642 (October 24, 2007). Included in the Annex

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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 required 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 nondiscrimination on the grounds of medical history. 15 ICCPR status of ratification. Available at http://www2.ohchr.org/english/law/ccpr-ratify.htm

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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

The Constitution of the Republic of Korea, Article 6(2) supra note 11. 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).
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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 pursuant 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 discrimination) on the part of the government. The government’s interest in achieving the purely symbolic aim of calming a xenophobic 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 students,” 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 children 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

See 권영성, 헌법원론 338-40 (4th. ed. 2001). See also 전광석,한국헌법론 256-57 (5th. ed. 2009). 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.
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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 incountry 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 HIVnegative 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 nondiscrimination 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

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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-therise-or-so-warns-the-chosun-ilbo/

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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. “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. Foreign English teachers provide the archetype of the

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. include:
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
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Some examples

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In November 2007, the Korea Herald quoted “an official at the Ministry of Justice” as saying, “Drug 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. That is why we are implementing changes now.”33 In December 2007, the U.K. Guardian Weekly quoted the Ministry of Justice explaining that the E-2 visa requirements are intended to “prevent native English teachers who disrupt social order with taking drugs, committing sexual harassment and alcohol intoxication.”34 In September 2007, No Cut News published an article entitled “Korea is a ‘Perverted 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 committed 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 Concerned 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 article 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

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

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In October 2008, ABC News published an article, prepared by Korea desk correspondent 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 percent 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 foreigner 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 committed 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 meanspirited 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

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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 faking 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 assault 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 responsibility.”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).

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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
See Policy Memo, supra note 6. (Emphasis added). 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,
48 47

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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.

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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
Year 2005 2006 2007 2008 Types of Drugs
Cannabis Others (MDMA) Total Arrests Number of E-2 Visa Holders

The Seven English-Speaking Countries Eligible for the E-2 Visa
U.S.A. Canada U.K. Ireland New Zealand Australia South Africa

12 8 24 12

0 0 0 1

12 8 24 13

12,439 15,001 17,721 19,375

4 4 8 6

6 4 10 5

0 0 3 1

0 0 0 1

2 0 0 0

0 0 3 0

0 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.

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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

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

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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 publicly. . . [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 stigmatize certain categories of persons, particularly those belonging to [non-citizen] groups[.]67
Id. 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).
65 64

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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.

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Sex Crime68 Arrests of Foreigners from Seven English-Speaking Countries (All Visa Types) Compared with Korean Citizens

Year 2006 2007 2008

Total for Korean Citizens

Total for Foreigners from seven EnglishSpeaking Countries

U.S.A.

Canada

U.K.

Australia

New Zealand

South Africa

Ireland

48,907 52,711 53,240

34 37 39

30 30 28

1 6 7

1 0 1

1 1 1

1 0 2
69

0 0 0

0 0 0

(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

“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 http://news.chosun.com/site/data/html_dir/2008/07/09/2008070900054.html English translation available at http://koreabeat.com/?p=1217

68

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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 Just in the past year, there

been charged with numerous sexual offenses against children.

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

See “Age of Sexual Crime Victims Getting Lower,” The Korea Times, December 22, 2008. Available at http://www.koreatimes.co.kr/www/news/nation/2008/12/117_36541.html 74 See “초등생 성추행 영어강사 징역10월,” Chusun Ilbo, October 14, 2008. Available at http://news.chosun.com/site/data/html_dir/2008/10/14/2008101400725.html 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

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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 students; 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

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-failsprotecting-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 http://news.naver.com/main/read.nhn?mode=LS2D&mid=sec&sid1=102&sid2=249&oid=214&aid=000006610 6 80 See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Republic 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

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입건교사 위 법 행 위 유 형 (Type of Misconduct) 폭행상해치사(Assault, bodily injuries resulting in death) 음주운전무면허운전등(Driving while intoxicated, Driving without a license) 강제추행청소년강간성매매(Sexual assault, Juvenile rape, Buying sex) 간통혼인빙자간음(Adultery, Seduction by promise of marriage) 사기등(Fraud) 살인치사등(Homicide) 도박(Gambling) 절도횡령뇌물수수등(Larceny, Embezzlement, Bribery) 마약(Illegal drugs) 기타(Others) 합 계 (Total)
(Table 4) From the Office of National Assemblyperson Kwon Chul-hyun.82

(Number of [Korean] Teachers Indicted) 294 1,059 35 19 20 5 14 31 2 254 1,733

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.

Id. 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 http://news.naver.com/main/read.nhn?mode=LS2D&mid=sec&sid1=102&sid2=249&oid=009&aid=000210068 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 http://koreabeat.com/?p=4551
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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 awareness. When asked, “Would you allow your children to go to a school where PLWHA Three years later, the Korea

children attend?” 50.4% of respondents answered “no.”87

HIV/AIDS Information Center survey asked the same question with 44.4% of respondents
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
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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 transfusion, 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, public 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?”).

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.

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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
See “Republic of Korea, Fighting a Rising Tide: The Response to AIDS in East Asia,” supra note 87. (Emphasis added). 92 Id. (Emphasis added). 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
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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 because 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

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 Id. (Emphasis added).

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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. 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 nondiscrimination on grounds of medical history.99 The Seoul Administrative Court ruled that the government’s deportation policy violated Heo’s human rights and cancelled the deportation. In its written opinion, the court The

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 unaware 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,
See “NHRCK Welcomes Seoul Administrative Court's Decision to Reverse Departure Order Against HIVInfected 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.
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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 deportation 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 deportation 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 Jeonghun, 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.

See Heo Case, Seoul High Court Decision. A copy is on file with the author. (Emphasis added). “‘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).
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The International Covenant on Economic, Social and Cultural Rights (General Comment 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 discriminatory 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. 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 Id. (Emphasis added).
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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 InterMinisterial 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 See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Republic of Korea, 29 May 2008; page 4, para. 6. A/HRC/8/40; A/HRC/WG.6/2/L.6. Available at: http://www.unhcr.org/refworld/docid/485b96303.html

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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

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.

113

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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

118 119 120

See Basic Act, Article 5 (Basic Plan for Policies Regarding Foreigners in Korea) supra note 109. See Article 1 (Purpose) of the Basic Act supra note 109. See 외국인정책기본계획 (2008-2012), Section 1-2-2.

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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

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).

121

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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 environment 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
124 125 126

See generally 외국인정책기본계획 (2008-2012). Id. at section 1-1.

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.

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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 discrimination 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.

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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 country’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 premise 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 descriptions 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
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
127

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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

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).

130

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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 considered “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 Republic 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

134 135

See “Non-citizens in Korea have the right to equality and non-discriminatory treatment” infra section 2(B). Article 11(1)1, Immigration Control Act, Act No. 1289, March 5, 1963. (Emphasis added).

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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
출해야 합니다.”
137

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

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. 137 See 원어민 회화지도 (E-2) 사증제도 개선 안내, 법무부, 2007. 11. (Emphasis added). Included in the Annex. 138 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).

136

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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
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 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 141 See 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 10, para. 44. CERD/C/426/Add.2. (Hereinafter “2003 CERD Report”). Available at: http://www.unhcr.org/refworld/docid/3f24767b4.html 142 See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination 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
139

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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

See 2008 CCPR Report supra note 111, page 2, para. 4. (Emphasis added). 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.
145

144

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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

See 2006 CERD Report supra note 142, page 4, para. 11. (Emphasis added). 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 See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination 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.
150

149

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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 noncitizens 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
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.
156

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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 nondiscrimination 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
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
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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 nondiscrimination, 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 labor standards guaranteed by the Labor Standards Act are not applied to foreign [workers] even when [they] are practically in labor relationships offering their services . . . Hence, it must be unreasonable discrimination that companies exclude [foreign workers] from the
See 2003 CERD Report, supra note 141, page 13, para. 71. 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.
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workers to whom all the provisions in the Labor Standards Act are applied . . . 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

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

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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
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.
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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
See 2008 CCPR Report supra note 111, page 2, para. 5. (Emphasis added). 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
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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.

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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

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 Id. (Emphasis added).

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‘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.
Id. (Emphasis added). Id. ay page 6, para. 24. 191 See 2007 UN CERD Press Release supra note 110. 192 See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Republic of Korea, 29 May 2008; page 4, para. 5. (Emphasis added). A/HRC/8/40; A/HRC/WG.6/2/L.6. Available at: http://www.unhcr.org/refworld/docid/485b96303.html 193 See 2006 CERD Report supra note 142, page 7, para. 27.
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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 noncitizens.”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. 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 The relevant

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 3, para. 14. CERD/C/KOR/CO/14. Available at: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf 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.”)

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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

Supra note 120 section 1-1. 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 http://www.koreatimes.co.kr/www/news/nation/2009/03/117_41268.html 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 http://www.koreatimes.co.kr/www/news/special/2009/05/242_43673.html 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
199

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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.)

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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.
CERD General Recommendation 30 supra note 12, page 4, para. 24. (Emphasis added). 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 http://www.koreatimes.co.kr/www/news/nation/nation_view.asp?newsIdx=10246&categoryCode=117 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
206 205

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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 Nondiscrimination 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 [nondiscrimination] 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.

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threat to Korean “children and young students” as anyone, excluding them from precautionary 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

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 noncitizens 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 InterAmerican 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

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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 private 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,
See 권영성, 헌법원론 338-40 (4th. ed. 2001). 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.
213 212

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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 criminal 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

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 http://www.koreatimes.co.kr/www/news/special/2009/05/177_34649.html 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

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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 ethnicity219 presents the only suitable qualification, a clear list of excludable offenses as part of the

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-a943b322ffcd7d48/Presentation/NewsAttachment/7090e089-247e-44dd-a047b366eca8d9e7/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 http://www.koreatimes.co.kr/www/news/nation/nation_view.asp?newsIdx=10246&categoryCode=117 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 http://www.koreatimes.co.kr/www/news/special/2009/05/181_21005.html 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 http://www.koreatimes.co.kr/www/news/nation/2009/03/117_41268.html 219 “IGSE to Nurture Top Quality English Teachers,” Korea Times, April 22, 2009.

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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 http://www.koreatimes.co.kr/www/news/special/2009/05/242_43673.html 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.

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Further complicating the issue, E-2 visa holders providing highly personal information 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’

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

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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 discriminatory where there exists no reasonable, objective and factual basis for the differentiation. Japan in 1994. A similar attempt to drug test foreign English teachers only was made in 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

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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. Nevertheless, 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 methamphetamine (philopon).231 Foreign English teachers have also recently been arrested for

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/wpdyn/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 http://koreabeat.com/?p=4623 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”).

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“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
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
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Draft—Not for Quotation or Citation Without the Permission of the Author

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 carrier 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.

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).

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Benjamin K. Wagner

Draft—Not for Quotation or Citation Without the Permission of the Author

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.

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Benjamin K. Wagner

Draft—Not for Quotation or Citation Without the Permission of the Author

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 appropriate 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.

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