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Are 'foreigner only' rules legal?

This story was originally published on July 24, 2009. -- Ed.

So I needed a new cell phone. But as a foreigner in Korea, I quickly found that my options were limited. 

There are models galore, but complicated Korean rules turn something as simple as buying a phone into an exercise in futility. 

Everything depends on my visa status. A recent visit to one store was typical. Did I have a national ID, the counter guy asked. I produced my Alien Registration Card, and the man brought out a chart matching up visa types with cell phone plans. 

This little chart organizes foreigners into rank, with "common" (ilban) foreigners limited to 35,000 won worth of air time while "high-grade" (wooryang) foreigners are free from the limitation. While he was checking to see if my visa status placed me in the "high-grade" category and allowed me to be trusted with a little credit, the manager came up to double check my ARC. 

"This expires in 3 months," he said, dismissing me. 

And so it went. I crossed Seoul, cash in hand — but no phone. 

One saleswoman laid it out for me like this: "If you have a Korean ID, I'll sell you a phone; foreigner ARC, no phone." 

Another made an X sign with his forearms before I even reached the counter. 

One whispered an insider bit of advice: Sidestep the rules by having one of your Korean friends buy the phone using their name.

I finally got my phone, but I had to pay up front for the hardware. 

"No installment plan for foreigners, sir," I was told. 

Getting a phone can be tricky, but getting a credit card or a bank loan is even more difficult. 

Foreign residents know that with some luck and the right connections these services might be possible; but one's "foreignness" presents a significant obstacle. Why is that? The answer is usually that the foreigner is considered a "flight risk." 

While the citizen may be more risky financially, the reasoning goes, the foreigner could always flee the jurisdiction altogether — and then how would the bank be able to collect its debt? 

The legal test in Korea for whether an act of discrimination has occurred is one of reasonableness. So is the banks' usual flight risk justification reasonable? A Japanese court thought so when it applied the very same reasonableness test in the case of Herman v. Asahi Bank. 

Steven Herman had lived in Japan for 10 years, was the president of the Foreign Press, earned about $200,000 a year, had good credit, and was engaged to a Japanese citizen. Nevertheless, Herman was denied a housing loan because of his nationality. 

Herman took the case to court and cited the Convention on the Elimination of Racial Discrimination, which also protects against non-citizen discrimination. Judge Otake, presiding over the Tokyo District Court, ruled that the actions of the bank were not discriminatory because they were "reasonable." 

"It is necessary for a bank to make a guideline for conditions for housing loans to make profits," explained the judge. "It is reasonable for the bank to turn down the request from a foreigner who is not certain to stay in Japan." 

But compare the case of Ziad Habassi. Habassi brought the same case against a bank in Denmark, also citing the CERD, but he was ultimately able to achieve a different result. 

Habassi was a Tunisian long-term resident of Denmark married to a Danish citizen with a good credit record. Nevertheless, like Herman, Habassi was denied a loan because of his nationality. 

The Danish bank put forward the same justification as the Japanese bank, explaining that a foreigner was a flight risk. Yet the Danish bank's justification was ultimately found to be unreasonable and discriminatory while the Japanese bank's justification was found reasonable and nondiscriminatory. 

Why the difference and what does it mean for us in Korea? The difference is not to be found at the national level. In fact, the Danish inquiry, like the Japanese, found the bank's refusal of the loan to be "reasonable." 

The difference is to be found at the international level. Denmark, like the Republic of Korea, is not only party to the CERD Convention, but also party to the CERD's optional protocol, which allows individuals to bring a case against the state itself. 

Thus, after losing his case against the Danish Bank, Habassi was able to bring one against the state of Denmark. Herman never had that chance against Japan since the Japan is not a party to the CERD's optional protocol. 

In Habassi v. Denmark, it was the CERD Committee who acted as judges in determining whether the bank's justification was reasonable and whether discrimination had occurred. 

Like the Japanese court, the CERD Committee found nothing unreasonable about banks setting up legitimate guidelines for issuing loans and making sure payments get made. 

"In the opinion of the Committee, however, nationality is not the most appropriate requisite when investigating a person's will or capacity to reimburse a loan." 

After all, the Committee pointed out, citizens are as capable of fleeing the jurisdiction as non-citizens. 

"A citizen may move abroad or have all his property in another country and thus evade all attempts to enforce a claim of repayment." Therefore, the Committee reasoned, when assessing a non-citizen loan applicant's capacity to repay, nationality cannot reasonably be the sole guiding criterion, rather "(t)he applicant's permanent residence or the place where his employment, property or family ties are to be found may be more relevant." 

The clear reasoning of the CERD Committee stands in stark contrast to what was accepted as "reasonable" in the Japanese decision. But how do we get some of that reasonableness here in Korea? 

The hope is that it's on its way. As explained, Korea is party to the optional protocol individual complaint mechanism of the CERD that would allow the Committee to hear a case against the state where domestic remedies had been exhausted and where a decision contrary to the Convention was allowed to stand. 

But hope exists first in domestic institutions such as the National Human Rights Commission of Korea, which has been charged by the government with clarifying the Korean standard of "discrimination without reasonable cause." 

After filing a complaint with the NHRCK over compulsory AIDS and drug tests for foreign teachers only, I have been asked whether the effort is really worth it. 

I am convinced that it is. Discrimination has been referred to as a "hydra-headed and resilient phenomenon capable of adaptation and survival." 

Whether it comes in the form of discriminatory AIDS tests, or the unfair refusal of a loan, or biased treatment against the nation's new generation of interracial children, all of us have a strong interest in working against it. 

Discrimination serves none of our interests because if it is allowed to persist it will strike out against all of us, eventually. And what may appear to be merely a matter of principle often has a very practical and economic impact. 

Americans know that one of the very first discrimination cases was fought and won by an Asian noncitizen who was unfairly denied economic opportunity because of his nationality (Yick Wo, 1886). 

Americans also remember that the Civil Rights Act of 1964 drew its power from the Commerce Clause and survived its first constitutional challenge on economic grounds in a case that involved a man being refused a room in a hotel (Heart of Atlanta Motel, 1964). 

But fighting discrimination is not just an American story, as Koreans well understand. Indeed, the champions of some of the first CERD discrimination cases have been Koreans taking legal action as non-citizens residing in Japan. 

In 2002, Ok Hyon-yong cited the CERD in her legal battle against a Japanese establishment that denied her admittance because she was a foreigner. And 10 years earlier Yi Tok-ung fought for, and won, the right to membership in an exclusively Japanese club. 

Struggles against discrimination take place in all countries. In Korea, we are fortunate the government has candidly acknowledged that "the relative lack of multi-ethnic experiences have been conducive to ... prejudice against foreign cultures and people" and that "(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." 

We are even more fortunate in that current administration has pledged "to create a mature multicultural society that respects the human rights of foreigners." 

The good news is that Korea has come a long way in making positive changes for foreigners, for example with the recent passage of the Act on the Treatment of Foreigners Residing in Korea; but the better news is that even more positive changes are on their way. 

By Benjamin K. Wagner

The author's views do not necessarily represent those of The Korea Herald — Ed. 

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