[Lee Jae-min] The UN-condemned mandatory medical testing

2016-11-29 16:34

Only her initials appear in the UN document, but we know she is a citizen of New Zealand. Her petition with a UN human rights body led to a finding of racial discrimination by Korea. She was one of the native English-speaking teachers working at a school in Korea.

Each year, about 30,000 foreigners enter Korea to teach English on an E-2 visa. According to Korean laws, regulations and practice, these visa holders are required to take a medical examination, which includes a HIV/AIDS test, at a hospital designated by the government. The results are then submitted to the authorities before they are hired or renew their contract. The mandatory testing was introduced in December 2007.

As their contracts are usually one year, this means they have to undergo a medical examination each year. Interestingly, this requirement is applicable only to foreign nationals. Korean nationals and foreign nationals of Korean ethnicity are not subject to the medical examination. This issue has been criticized given the increasing rate of home-grown HIV contraction.

The testing scheme is twofold. Teachers employed by private study institutions are required to submit testing results according to laws and regulations. Those employed by the Ministry of Education and Local Education Administrations are not subject to laws and regulations, but they are still subject to “manuals” of these governmental agencies which demand submission of the same testing results.

Let’s come back to the New Zealand teacher. She also taught English at a school in Ulsan under a contract with the Ulsan Metropolitan Office of Education since 2008. When her contract was up for renewal in 2009, she refused to comply with HIV/AIDS testing requirements. She said it was discrimination based on national origin and race because the testing is only required for foreign nationals. Her contract was not renewed.

She filed a petition with the National Human Rights Commission of Korea, which dismissed the complaint six month later for lack of specificity. The arbitration proceeding at the Korean Commercial Arbitration Board didn’t fare well either. In December 2012 she filed a petition with the UN Committee on the Elimination of Racial Discrimination against Korea under the UN Convention on the Elimination of All Forms of Racial Discrimination to which Korea is a state party. She claimed that she was a victim of racial discrimination and that her right to work and right to public health had been breached by Korea.

The UN deliberation is not a judicial proceeding, but its repercussion is not insignificant at all. Decisions are published and widely available through UN documents. The decision for this particular petition came in May 2015, where the UN committee found that the mandatory testing requirement discriminates against the petitioner’s fundamental right and recommended Korea to repeal laws, regulations and practice relating to the measure. The recommended remedial action has not taken place yet. So, even today those applying for an E-2 visa still have to get tested for HIV/ AIDS. This past September, apparently dismayed by the government’s inaction, the National Human Rights Commission issued its own recommendation to the government to bring the measure into conformity with the UN recommendation.

More than anything else, the decision of the UN committee shows how this test requirement is viewed outside Korea. The decision noted that the testing is carried out “on the basis of ethnic origin.” It also found that the mandatory testing requirement is “in contradiction of international standards” and that it is “ineffective for public health purposes, discriminatory, and harmful to the enjoyment of fundamental rights.” Stereotyping, profiling and stigmatizing are the three words that are repeated throughout the decision. It concluded that the measure constitutes racial discrimination. The committee required Korea to publicize the decision with a Korean translation.

By any measure, the recommendation is clear and straightforward. It is sad that Korea has been dragging its feet in amending this anachronistic law and practice.

By Lee Jae-min

Lee Jae-min is a professor of law at Seoul National University. He can be reached at jaemin@snu.ac.kr. — Ed.
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