ILN

HIV and Drug Testing of Non-Ethnic Korean Foreign Teachers in South Korea Found Violative of Convention to Eliminate Racial Discrimination

Mark E. Wojcik

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), a United Nations convention, was opened for signature in 1965 and entered into force in 1969. As of January 2017, the treaty has 177 State Parties, including the United States, which signed the treaty in 1966 and finally became a party in 1994.

Under the CERD, State Parties “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races…” Pursuant to the CERD, each State Party “undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions. …” and will “take effective measures to review governmental, national and local policies.” Furthermore, under the CERD, each State Party will “assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

The UN Committee on the Elimination of Racial Discrimination, which is composed of independent experts, monitors the implementation of the CERD by the State Parties.

In 2015, in the case of L.G. v. Republic of Korea, the Committee found that South Korea violated the CERD with mandatory HIV/AIDS and drug tests conducted on non-Koreans (i.e., foreign nationals who are not ethnic Koreans) who seek to teach and continue to teach English in South Korea.

L.G. v. Republic of Korea involved a national of New Zealand (L.G.), who had been employed in an elementary school in the South Korea as a native English-speaking teacher. Shortly after her arrival in South Korea, L.G. was, as a prerequisite for her job, required to be tested for HIV/AIDS and for illegal drug use. Korean citizen teachers and ethnic Korean noncitizen teachers are not required to undergo such scrutiny. These tests were originally a one-time requirement to register as an alien; however, provincial and municipal education offices in South Korea begun to require annual testing of foreign native-speaker teachers as a condition of renewing employment contracts.

While L.G. initially complied with the demand and underwent HIV and drug testing, she refused to undergo the same testing when required to do so in the following year as matter of principle and in protest against a discriminatory act. She was willing to undergo any tests also required of her Korean fellow teachers, but she would not undergo medical tests required only of foreigners and ethnic Korean non-citizens. On the ground of her refusal to undergo testing, L.G.’s teaching contract was not renewed. She could not remain in South Korea without a work visa.

After exhausting domestic remedies in South Korea to challenge her dismissal, L.G. filed a complaint with the Committee. In her complaint, she asserted that the mandatory HIV/AIDS testing of foreign teachers was put in place not for public health concerns but because of negative beliefs about the moral character of foreign teachers. L.G. alleged that the testing stigmatized and expressed hostility toward non-ethnic-Korean-foreigners and was based on judgmental attitudes that foreign teachers engaged in “immoral behavior.”

In its answer, South Korea stated that annual medical testing for HIV/AIDS and for drug use was no longer specifically required of foreign teachers as of 2010 as a condition for contract renewal. L.G. replied that “the mere discontinuance” of the discriminatory policy “was not a complete remedy” for the violations of CERD. L.G. demanded a public apology and financial compensation for losing her job and for “the humiliation and loss of dignity that she was forced to endure as a result of standing up for her rights in the face of the discriminatory treatment that she had suffered.”

The Committee found that South Korea had failed to investigate L.G.’s complaint to determine whether racial discrimination was at the root of the requirement to test only non-Korean foreign teachers for HIV/AIDS and drug use. The Committee found that other teachers who were Korean or ethnically Korean were not subject to those medical tests, and L.G. lost her employment in South Korea solely for refusing to be tested for HIV/AIDS and for drugs. The Committee held that mandatory testing for HIV/AIDS was against international medical standards for controlling HIV and was ineffective for public health purposes. Moreover, the Committee found that the South Korean government did not put forward any reasons to justify testing only foreign teachers and that “the tests for HIV/AIDS and illegal drugs were viewed as a means of checking the values and morality of foreign teachers of English.”

Upon a finding of violations of the CERD, the Committee recommended that South Korea compensate L.G. for moral and material damages caused by the discriminatory testing, including lost wages. The Committee also recommended that South Korea take appropriate measures to review laws and policies relating to the employment of foreigners and that it abolish any policies or practices that would manifest any xenophobia or stigma. The Committee also asked South Korea to give wide publicity to the Committee’s decision, including translating it and disseminating copies to prosecutors and judicial bodies in South Korea.

South Korea lost before the Committee even though it had already realized that the practice of requiring annual HIV and drug testing of foreigners was ineffective as a public health measure and as the practice could not be explained other than by racial bias against non-Korean foreigners. The decision is seen to influence developments in other countries where workers face similar discriminatory treatment based on race or national origin.

Mark E. Wojcik

Professor Mark E. Wojcik teaches international law and other subjects at The John Marshall Law School in Chicago. He is the Diversity Officer for the ABA Section of International Law and a former Editor-in-Chief of International Law News.