Letter from Human Rights Watch on Korea`s HIV laws

Following are excerpts of a letter Human Rights Watch sent to the National Human Rights Commission of Korea. -- Ed.



June 19, 2009

Mr. Lee Seong-taek

Investigator

Anti-Discrimination Division

National Human Rights Commission of Korea



Dear Mr. Lee:



Human Rights Watch is pleased to have the opportunity to submit this letter for your consideration in conjunction with the National Human Rights Commission of Korea`s upcoming conference on Korea`s E-2 teaching visa policy. We strongly urge the NHRCK to find that the existing E-2 teaching visa policy is discriminatory and to recommend the abolition of the policy`s HIV testing requirement.

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HRW hopes that this letter will help to alert the Commission to potential international human rights law and public health concerns implicated by HIV testing requirements in Korea`s E-2 teaching visa policy.



South Korea is one of only 14 countries worldwide to either categorically refuse entry of persons living with HIV and AIDS or require disclosure of HIV status for entry for short-term stays. Although international human rights law allows for the restriction of rights in the face of public health emergencies, such restrictions must be the minimum intrusion necessary to effectively address the public health concern. HIV-related restrictions on entry, stay, and residence such as those created by South Korea`s E-2 teaching visa policy and related immigration laws, however, are unnecessary or even harmful from a public health perspective. Mandatory HIV testing and deportation of HIV-positive foreign workers need to be immediately halted -- indeed, United Nations Secretary-General Ban Ki-moon recently asked Korean government officials to lift Korea`s entry restrictions for non-citizens living with HIV and legislative priority and government resources should be redirected toward establishing prevention, care, and treatment programs serving non-citizens and citizens alike.

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National restrictions on entry, stay, and residence for persons living with HIV broadly violate international human rights law provisions banning discrimination and upholding equality before the law. Following the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights guarantees all persons the right to equal protection of the law without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The former U.N. Commission on Human Rights has interpreted this provision to include discrimination based on HIV/AIDS status. States must respect this right for all individuals within their territory and subject to their jurisdiction, regardless of citizenship. Indeed, the Human Rights Committee -- the ICCPR`s monitoring body -- has noted that while "(i)t is in principle a matter for the State to decide who it will admit to its territory ... 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, prohibition of inhuman treatment and respect for family life arise." Human rights bodies, such as the European Court of Human Rights, have concluded that states have little freedom to implement entry and residence policies and laws that clearly discriminate against particular groups.

Restrictions against entry, stay, and residence based on HIV status also run contrary to related human rights principles.

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According to international human rights law, to avoid being classified as impermissible discrimination, any difference in treatment that has a negative impact on a particular group -- e.g. persons living with HIV or AIDS --has to be justified by being necessary to achieve a compelling purpose and be the least restrictive (meaning least discriminatory) means of achieving that purpose. However, while preservation of public health is a compelling purpose that might justify some forms of restrictions, HIV-related distinctions in entry, stay, and residence do not actually protect public health, and are too broad and coercive to be the least restrictive means to achieve this end.

HIV-related restrictions on entry, stay, and residence have long been recognized by the international community to not be justified by public health goals. The World Health Organization first concluded in 1987 that screening international travelers was not an effective strategy to prevent the spread of HIV and advised in 1988 that such screening would be impractical and wasteful.

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Those countries without HIV-related entry, stay, and residence restrictions have not reported any negative public health consequences.

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Indeed, HIV-related restrictions on entry, stay, and residence may negatively impact public health for several reasons. First, these restrictions contribute to and reinforce stigma and discrimination against migrant persons living with HIV by lending credence to the idea that non-nationals are a danger from which the national population must be protected, and by prejudicially implying that persons living with HIV will act irresponsibly in transmitting the infection. The restrictions make it difficult to discuss and address HIV issues in public, decreasing prevention, testing, and treatment opportunities and uptake, and further isolating and marginalizing persons living with HIV. Singling out HIV for entry restrictions and mandatory testing has also been criticized by experts on the grounds that it creates a false sense of security in a country`s nationals that only migrants are at risk for HIV, and that border control rather than other means of prevention will curb the spread of HIV/AIDS.



HIV-related restrictions in E-2 visa policy



Since November 2007, Korean national policy has mandated that E-2 teaching visa holders submit a health certificate, including an HIV test, when applying to extend their residence in Korea, and new applicants for the E-2 visa must submit a health certificate including HIV test when applying for alien registration. Mandatory HIV testing is closely linked to the practice of deporting those found to be positive. Korea`s Immigration Control Act stipulates that immigration officers have a right to deny entry to or to deport those who are carrying a communicable disease, and in 2008, the Korea Center for Disease Control and Prevention reported that 521 of the 647 foreigners diagnosed with HIV had been "forced to leave the country."

Mandatory HIV testing for E-2 visa applicants and indeed for any foreign national in Korea as a precondition for entry, stay, or residence, is impermissible under international law. As noted above, according to international human rights law, any difference in treatment that has a negative impact on a particular group -- such as persons living with HIV and AIDS -- has to be justified by being necessary to achieve a compelling purpose and be the least restrictive (meaning least discriminatory) means of achieving that purpose. Korea`s HIV-related requirements in entry, stay, and residence may not be justified because they are unnecessarily discriminatory and do not actually protect the public health.

The complaint submitted by Mr. Benjamin Wagner to the NHRCK on the E-2 visa policy details the influence that media reports on non-citizens` HIV rates, sexual offenses, and drug involvement -- as opposed to verifiable public health data -- have had in directing the course of that policy. As noted above, the World Health Organization and UNAIDS have unilaterally declared that restrictions on entry, stay, or residence based on actual or suspected HIV status alone are discriminatory, and cannot be justified by public health concerns. Indeed, public health may be negatively impacted by these restrictions since, as Mr. Wagner notes in his complaint, levels of information on HIV/AIDS in Korea are low, and mandatory testing and deportation of foreign English teachers only serve to perpetuate stigma and discrimination surrounding HIV, and to reinforce the stereotype that foreigners alone are at risk from the disease.

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A decisive call to eliminate mandatory HIV testing provisions in the E-2 visa policy and related refusal of entry or deportation is now more important than ever. Rather than working to reverse such HIV-related restrictions on entry, stay and residence in the wake of the "Heo" decision, some legislators have in fact been trying to expand them. In December 2008, a proposed amendment to the Immigration Control Act was introduced to the National Assembly to establish a legal basis for requiring a health certificate of all foreign workers, extending E-2 visa type medical testing to all foreign workers in Korea.

Some governments worldwide are working to eliminate HIV-related restrictions on entry, stay and residence: In July 2008, the United States repealed its statutory entry ban for persons living with HIV. The Korean government should devote its energies toward eliminating mandatory HIV testing and HIV-related entry, stay, and residence restrictions, and establishing comprehensive HIV prevention, care, and treatment programs serving both citizens and non-citizens, which would much better serve the health of the estimated 13,000 individuals in Korea living with HIV, and the Korean population as a whole. The creation and maintenance of such programs will be the truly effective long-term strategy in combating this disease from both a public health and a human rights perspective.

We thank you for the opportunity to express these concerns to you, and hope that our recommendations may be of assistance in addressing this important issue.



Yours sincerely,

Joseph Amon, Ph.D. MSPH

Director, Health and Human Rights Division

Human Rights Watch