Story by: Matt VanVolkenburg, Ben Wagner, Matthew Lamers, Photos by: Michael Roy
Josh Foreman, a married man, has been teaching English in Korea for six years. Because he is a foreign teacher, he has been required to submit HIV/AIDS test results since 2007. That requirement only falls on E-2 visa holders. He describes himself as a “normal guy” who doesn’t use drugs, doesn’t have any sexually transmitted diseases, is without a criminal record and doesn’t frequent Korea’s prostitution neighborhoods. He feels that mandatory HIV/AIDS testing for Western teachers is not only discriminatory, but it’s detrimental to public health.
United Nations Secretary General Ban Ki-moon agrees and has urged his country to lift the requirement. The AIDS Society of Asia and the Pacific, Human Rights Watch, the human rights law foundation GongGam and Lawyers for a Democratic Society have also all spoken out against the testing.
“I have to take this test,” says Foreman, also Groove Korea’s Dining and Destinations editor. “It just happens over and over again. I’m a law-abiding citizen. I’ve had multiple criminal background checks since I’ve been in Korea. I’m college-educated. I’m a certified teacher in the U.S., and I’ve never been convicted of a crime. I never have and I never will sleep with a prostitute. I’ve had probably five AIDS tests since I’ve been in Korea. I don’t appreciate having to give up my blood for this test.
“I’m being tested because I’m not Korean.”
Foreman was one of 22,319 E-2 visa-holding residents who were required to submit to HIV/AIDS testing last year — the last time he was required to do so.
The ongoing fight to have Korea’s mandatory foreigner HIV/AIDS testing overturned took on a new life in July 2012 when the the U.N.’s International Committee on the Elimination of Racial Discrimination, known as CERD, accepted a case filed by a New Zealand woman who was refused a contract extension because she would not submit an HIV/AIDS test. The committee monitors the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
The case has major legal ramifications for Korea because a ruling in her favor would take precedence over any Korean regulations already in place. That is because Korea has been a party to the ICERD since 1978 and has declared that the treaty “has the same authority of domestic law and does not necessitate additional legislation.” Korea is party not only to the ICERD, but also the convention’s optional protocol, which is why it was open to cases such as the one from the New Zealand woman. It is the first time ICERD’s optional protocol has been used by an individual to bring a case against the Republic of Korea, which will be heard by the CERD.
The Korean government had three months to respond. Instead, it chose to ignore the actions of the United Nations and is now six months in arrears. There is no indication that Korea will act anytime soon. Not only has the government chosen to ignore the CERD, but so, too, has the country’s media. Nary a word has been written by the country’s vernacular dailies about the challenge to the mandatory HIV/AIDS teacher testing. That stands in stark contrast to the mania that the media whipped up about, as one newspaper put it, the “the shocking perversions of some English teachers” in recent years.
That being said, the word is out in the Korean legal community. Lawyers for a Democratic Society (MINBYUN), an NGO focused on promoting democracy throughout the peninsula, plans to submit an amicus brief in favor of the CERD complaint.
In a letter asking that E-2 teachers come forward, the group explained why it is taking up the case: “The Korean government has yet to explain the link between classroom teaching and HIV infection, require that Korean nationals with the same employment undergo testing, or provide any official data to support a link between sex crimes and E-2 visa holders. Due to the discriminatory nature of the testing and under the premise that it is in violation with Korea’s commitment to the U.N. Committee on the Elimination of Racial Discrimination, we will be sending a letter of allegation to the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia and related intolerance.”
In 2010, the Prime Minister’s Office conducted a public-opinion poll, finding 80.7 percent of ordinary citizens in support of mandatory HIV tests for foreign teachers. In an interview in the Korea Herald in 2010, an official from the National Institute for International Education Development, a division of the Ministry of Education, cited concerns expressed by parents and doctors as a reason to enforce HIV test submissions, deportation and retesting. In the same article, Choi Hong-jun, deputy director of EPIK, cited the PMO survey as a reason to keep rigid HIV testing for foreigners intact.
Yet while concern is high, there have been no cases of students being infected with HIV by their foreign teachers.
Why it matters
Scapegoating as a detriment to public health
Instead of attempting to correct the misperception of how HIV is transmitted through educational efforts, the government has decided to give the public a false sense of security by implementing symbolic HIV tests that have little public health benefit. Experts say the foreigner-only HIV tests are detrimental to public health because they ultimately limit efforts to expand domestic HIV prevention and treatment efforts.
“The idea of controlling HIV through testing foreigners ignores the nature of how HIV is transmitted and the fact that HIV transmission occurs locally,” wrote Joesph Amon, director of the Health and Human Rights Division, in an op-ed in the Korea Times. “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 noncitizens are at risk for HIV.”
He continued: “These laws diminish efforts to expand domestic HIV prevention and treatment efforts. More fundamentally, these discriminatory laws are contradictory to human rights and an understanding that we all enjoy basic rights, regardless of our HIV status.
“South Korea’s restrictions on entry, stay and residence for people living with HIV broadly violate international human rights law provisions banning discrimination and upholding equality.”
In fact, the Education Ministry has stated that mandatory HIV testing “does not mean the government regards foreign teachers to be HIV positive or have the potential of transmission; it is just intended to assure the parents.” Public concern over foreign English teachers and the threat of AIDS is enormously disproportional to the potential for any objective harm — a fact that even public officials appear willing to admit.
Taking a stand
Korea draws a line in the sand at AIDS testing for teachers
Despite serious trepidations, Korea joined with the international community in rejecting compulsory HIV screenings for international travelers in the late 1980s. Since then, along with other nations, Korea has pledged to combat the stigma associated with HIV and to eliminate discrimination against those living with HIV or suspected of being HIV positive in two ways: first, by becoming a party to the U.N. Declaration of Commitment on HIV/AIDS in 2001, and second, by joining in subsequent declarations.
In June 2009, U.N. Secretary General Ban Ki-moon advised the ROK to lift its ban on all foreigners with HIV/AIDS.
In September of that year, then-President Lee Myung-bak concurred, informing the U.N. secretary general that Korea would remove its ban on entry for foreigners living with HIV and that HIV testing requirements for all non-citizens living and working in Korea would be abolished. The following January, Korea, together with the United States, pledged to remove all HIV travel restrictions on foreigners. In March 2010, before the U.N. Human Rights Council, the ROK reaffirmed its commitment to remove restrictions for “foreigners living with HIV in compliance with U.N. recommendations … as part of the effort to eliminate all forms of discrimination.” At the same meeting, the Korean presenter recounted the progress Korea had made on its pledge; and indeed the ROK had made substantial progress by officially eliminating HIV restrictions on entry, stay and residence for most groups of noncitizens — but not for foreign teachers.
The ROK’s refusal to abandon its HIV restrictions on foreign language teachers — including mandatory testing, retesting, loss of employment and the threat of deportation — puts into serious question its commitment to eliminating all forms of HIV-related restrictions for noncitizens. This breach was made all the more conspicuous when the U.N. secretary general, a Korean national who has made the removal of the stigma and discrimination associated with AIDS a personal mission, was forced to amend his congratulatory message to the ROK for “ending restrictions towards people living with HIV” and urge his home country to eliminate this final HIV restriction on foreigners as promised.
Unfortunately, the secretary general’s plea fell on deaf ears. As a result, Korea has remained on UNAIDS’ (Joint United Nations Program on HIV and AIDS), list of 49 countries which continue to have HIV restrictions in place.
Reneging on a promise to remove the mandatory HIV/AIDS tests to the secretary general of the United Nations, while admitting that the testing of foreign teachers has little public health benefit, beg the questions: How did we get to this, and why is Korea sticking to its guns on these policies?
Bad press to bad policy
Moral panic over foreign English teachers
On Oct. 28, 2007, the Korean government first gave notice of a new policy for foreign teachers in a widely circulated press release entitled “Illegal native speaker conversation instructors will no longer be tolerated.” The government’s press announcement was followed weeks later by a policy memo from the Ministry of Justice, which called for a crackdown on native speakers living and working in Korea because of “serious social problems arising from foreign language instructors employed in Korea who are breaking the law.”
The MOJ declared that foreign teachers working on E-2 native speaking conversation instructor visas would have to undergo medical tests for HIV and drugs at designated hospitals inside Korea, while immigration authorities stated that “(t)hose that are found to have drug intake, (or) AIDS … will have their stay canceled and be deported.”
In describing the “serious social outcry” over foreign teachers in Korea, the MOJ cited general “news media coverage about those unqualified E-2 teaching visa holders” who “were caught for fraudulent diplomas, drugs, sexual offenses, etc.” according to the Residence Policy Division of the Korea Immigration Service.
The catalyst to all of this was the arrest of Christopher Paul Neil in Thailand, a serial child sex offender. The MOJ made specific mention of a news report on Oct. 17, 2007, by KBS, which was broadcast only 11 days before the new measures were announced.
Neil was captured in Thailand and arrested for the sexual abuse of Thai children after an international manhunt led by Interpol. Although Neil’s offenses had occurred outside of Korea and there were no Korean victims, local interest was high as Interpol had identified Neil as an English teacher working in Korea just prior to his arrest. Neil was not HIV positive or involved with drugs; Neil was also not an E-2 visa holder.
Many foreign teachers assumed, however, that Neil’s arrest was nonetheless directly responsible for the introduction of the new measures for E-2 visa holders. Yet while Neil’s notorious status as an “illegal native speaker” and the moral panic it had provoked had indeed served as the opportunity to introduce the measures, pressure had been mounting to do something about native speaking English teachers, who were increasingly being perceived as morally problematic.
News of Neil’s arrest stirred exaggerated and distorted claims from the media. On Oct. 17, 2007, MBC stated “incidents surrounding native-speaking instructors are neverending.” The next day, the Seoul Sinmun worried that Korea would become “a paradise for criminals from English-speaking nations” since native speakers could easily find good jobs in the country, and the JoongAng Ilbo speculated that “there must be even more crimes that have yet to be revealed.”
Also on Oct. 18, the Hankook Ilbo asserted that “society now knows just how deep the pitfalls of native-speaking teachers are” and the JoongAng Ilbo declared that “the insecurity of school parents concerning native speaker teachers and instructors is growing by the day.”
The nation was primed for panic. The JoongAng Ilbo called on authorities to “hurry and formulate measures.”
These calls for action were immediately followed. The MOJ’s press release “Illegal native speaker conversation instructors will no longer be tolerated” came exactly 10 days later. It announced strict measures against native speakers and made clear that deviants among them would “no longer be tolerated.” In Korean, the phrase literally means “there is no place to stand” for these teachers, and the deportation measures made clear that the intent is to expel them from Korean society.
In channeling the public’s generalized animus toward native speakers into immigration crackdown measures, the MOJ was forced to decide which visa category to target and what type of sanctions to deploy. In both decisions it was guided by a citizens’ group of moral entrepreneurs who had campaigned for over two years to expel problematic foreign English teachers from Korea. The group had already been very effective in persuading the Korean media to give attention to its cause and, with the moral panic surrounding Neil’s arrest, the group found itself in a position to influence national policy when it was invited by the MOJ to attend a conference to plan the crackdown measures against so-called “illegal native speakers.”
The meeting, called the “Conference to Plan Measures Regarding Problems Related to Verifying Qualifications and the Issuance of E-2 Visas,” was held at the Ministry of Justice on Oct. 23, 2007.
The source of the bad policy
An ‘Anti-English’ spectrum of intolerance
When the aforementioned citizens’ group first formed in 2005, it called itself Anti-English Spectrum; it would later call itself the Citizens’ Movement to Expel Illegal Foreign Language Teachers, as well as its current name, the Citizens’ Group for Upright English Education (herein referred to as Citizens’ Group for short). At the time of Neil’s arrest this group had already lobbied and petitioned the government for mandatory HIV and drug tests for foreign teachers on E-2 visas.
The Citizens’ Group had originally formed on the internet during an earlier controversy which had also resulted in a moral panic over foreign English teachers. In mid-January 2005, the mainstream Korean news media began to report on the sudden, spreading anger of Korean netizens towards foreign English teachers because of risqué photos showing Korean women and foreign men at a “sexy costume party” at a nightclub in the Hongik University area (aka Hongdae). These photos were first posted at a foreign English teacher-oriented website named English Spectrum but were then spread throughout Korean cyberspace by Korean netizens. With numerous sensational reports highlighting the “lewd” aspects of the photos — one such report was published by Dailian News on Jan. 13, 2005 — enough attention was drawn to the issue to make “foreign instructor” the third most frequent search term that week on the popular Internet portal Daum. The photos of Western men and Korean women aroused the ire of Korean netizens who severely criticized both sets of participants: The “low quality,” lascivious foreign English teachers who were seen as purveyors of “vulgar foreign culture,” according to an Anti-English Spectrum cafe banner on Jan. 18, 2005, and the Korean women who were publicly shamed for being seen behaving in such a way, especially with foreign men.
In response to the English teacher forum where the photos were posted, the netizens named themselves Anti-English Spectrum and started their own forum, or “café,” at Naver.com, Korea’s largest portal site. The group claimed that their reason for forming was because foreign English teachers had “debased the image of Korean women in such a dirty and humiliating way,” which made them feel “something beyond rage, a feeling of unendurable humiliation,” according to the group’s statement of purpose. They pledged to “fight against English Spectrum … and also against illegal, low-quality English instructors.” Remarkably, the group was able to quickly attract some 10,000 online members. As of March 21, 2013, it had retained 15,971 members.
The group was also able to generate support from public officials. In its first week of operation, the group joined in a petition drive that called on National Assembly representatives and government ministries to “expel low-quality foreign instructors.” In response to the petition, assemblyman Lee Gun-hyeon told the press that “(p)roblems with foreign instructors have arisen in the past, but recently, as the number of foreign instructors has increased, so have these problems.” Rep. Lee called for “a thorough crackdown” on foreign teachers and said the government needed to “strengthen existing qualification screening.”
The group has suggested that AIDS-infected foreign teachers have purposely spread the disease (reported in the Korea Herald on Nov. 20, 2009), while molesting children (reported in an SBS radio interview on July 9, 2010), raping Korean women (reported in Seoul Sinmun on Nov. 14, 2008) and consuming large quantities of narcotics. Members of the group also discussed printing these accusations onto calling cards intended for distribution on the streets of Seoul, though there is no indication they followed through with the plan.
The group’s successful strategy for sustaining interest in its cause was to organize its own offline investigations of foreign English teachers in order to gather material of interest to the Korean media. In the years since the group formed, it has succeeded in portraying foreign English teachers as womanizers, rapists, child molesters and drug users.
The Korea Herald quoted from the group’s website in a March 2010 article: “(HIV) Infected foreigners are indiscriminately spreading the virus,” it said. “It is not yet known whether a foreign AIDS-infected people’s organization is responsible for inciting these people, or whether it is the infected foreigners within Korea just working amongst themselves. The only truth known from the rumor is that these people are spreading AIDS in order to make their existence known.”
The group has been a frequent contributor to reports in the mainstream and tabloid press with headlines such as “Tracking Blacklisted English Teachers Suspected of Having AIDS” (Breaknews, Sept. 18, 2006) and “From Molestation to AIDS Threats, the Shocking Perversions of Some English Teachers: Beware the ‘Ugly White Teacher’” (Sports Chosun, May 27, 2006). While the group is described in the latter article as right-thinking “(c)itizens angered by the nakedly sexual talk and actions of those kinds of white foreign teachers,” they claim to have contributed to more than 90 news articles and television programs on foreign English teachers in Korea and has been very successful in shaping public opinion and influencing national policy.
As noted, in the days following the arrest of Christopher Paul Neil, the MOJ immigration policy team reached out to the group and invited its leader to attend the Oct. 23 conference. The MOJ’s new measures for E-2 visa holders, announced just four days after this meeting, reflected the position advocated by the group of requiring E-2 visa holders to be subject to HIV and drug tests.
In the five years since the mandatory in-country HIV and drug test measures were put into effect, they have accomplished the group’s goal of “expelling” foreign teachers —―if not literally from Korean territory, then symbolically from Korean society — by branding them with the stigma associated with AIDS and drugs.
Spread out over several years, the Korean public has witnessed two overarching narratives regarding foreign English teachers: first are the reports that all are required to undergo HIV tests, and second are the stories describing these teachers as morally problematic and prone to criminal behavior. For this reason, it is perhaps not surprising that there has been so much public concern in South Korea over foreign English teachers and an alleged threat of AIDS.
AIDS as a vehicle for discriminatory animus
To understand why the HIV restrictions for foreigners in Korea were introduced and why they have remained in place for foreign language instructors, one must look at what is called symbolic stigma, where AIDS is used as a vehicle for discriminatory animus.
Researchers in AIDS-related stigma distinguish between instrumental stigma and symbolic stigma. While instrumental stigma derives from fear of AIDS perceived as a communicable and lethal illness, “(s)ymbolic AIDS stigma derives its force from the association of HIV with disliked groups,” according to Gregory M. Herek in “Thinking about AIDS and Stigma: A Psychologist’s Perspective.” It “is based on the metaphorical social meanings attached to AIDS, the people who get it, and the ways in which it is transmitted.”
In “Popularising Purity: Gender, Sexuality and Nationalism in HIV/AIDS Prevention for South Korean Youths,” professor Sealing Cheng explained that in Korea “HIV/AIDS gains its social meanings at the intersection of discourses about gender, sexuality and nationalism” and serves as “a metaphor of foreign contamination” as well as “a metaphor for fears of women out-of-control at times of rapid social transformations.” The HIV restrictions for foreign teachers find their basis in both of these metaphorical social meanings. According to Cheng, they were constructed as a symbolic barricade against the threat of miscegenation, and also as an incitement for Korean women to maintain racial and sexual “purity” for the good of the nation.
In Korea, as Cheng explains, “(b)ecause HIV/AIDS is constructed as a moral and sexual onslaught against the Korean nation, the sexuality of Korean women becomes all the more a target of censure.” The 2006 Breaknews article calls the virtue of women who have slept with foreign teachers into question and casts them in a negative light, describing the “serious problems” arising due to “promiscuous sexual relations between foreign teachers and Korean women.” At the same time, however, the article portrays these women as foreign English teachers’ “sexual playthings” and victims, who are “being defenselessly exposed to AIDS” by “degenerate foreign English instructors.”
The formulation here is consistent with a general tendency where, as Cheng notes, “women are simultaneously blamed for causing and spreading HIV/AIDS, and markedly vulnerable to infection.” The formulation also supports a nationalist narrative in which Korean women fraternizing with Western men are portrayed as promiscuous. Professor Sheila Miyoshi Jager explains that they emerged as “the symbol of the nation’s shame as well as the rallying point for national resistance.”
‘Shame’ on the women
The root of the resentment: Anti-Americanism
In fact, this essential formula has animated the nationalist movement to subject foreign English teachers to mandatory HIV tests which, as will be recalled, originated with the Korean women pictured with foreign men in the Hongdae club photos. The Citizens’ Group began its campaign against “illegal, low quality foreign English teachers” by shaming these women as foreigners’ whores. Shortly after the photos appeared in the press a post on the group’s website on Jan. 14, 2005, told members: “This is the chance to humiliate those crazy bitches.”
Media reports described other comments such as: “Whores, are Western bastards that good?” as reported in the Chosun Ilbo on Jan. 24, 2005, and “I hate the girls more than the Westerners who were with them,” according to a JoongAng Daily article on Jan 16, 2005. These women were tracked down online, threatened and severely harassed. Several were interviewed. “The Anti-English Spectrum Café … with no connection to their original purpose of criticizing low-quality foreigners whatsoever, branded us as whores, yanggongju and pimps,” one woman said.
The branding of these women as “yanggongju” was highly significant in sparking a nationalist movement, as this label reproduced a well-known “folk devil” of Korean society capable of provoking strong feelings of righteousness. Yanggongju is a derogatory term coined during the Korean War period that is used to refer to Korean women in U.S. military gijichon (camptowns) who work as sex workers, have relationships with or marry U.S. soldiers. Accordingly, the term, which literally means “Western princess,” is often translated as either “foreigners’ whore” or “G.I. bride.” The yanggongju were “treated as trash” and considered the “lowest of the low” in Korean society, wrote professor Katherine Moon in “Sex Among Allies.”
“The fact that they have mingled flesh and blood with foreigners (yangnom) in a society that has been racially and culturally homogenous for thousands of years makes them pariahs and a disgrace to themselves and their people, Korean by birth but no longer in body and spirit,” explained Moon. “Neo-Confucian moralism regarding women’s chastity and strong racialist conscience among Koreans have branded these women as doubly impure.’”
As professor Jager pointed out, “(t)he threat of miscegenation posed by the foreign soldier challenged the very foundations of Koreans’ self-identity as a pure and pristine people whose racial integrity has remained identifiable throughout centuries.” The stigmatization of the Korean women in the Hongdae club photos as yanggongju was one of the main reasons the foreign English teacher issue became so salient and has had so much staying power.
A 1965 study of U.S. military camptowns noted the “buffer effect” these areas were supposed to have in shielding Koreans from contamination by American culture. Especially emphasized was how, like these spaces, “the yanggongju function as a protection for the ‘nice’ women of Korea,” wrote Felix Moos in “Some Aspects of Korean Acculturation and Value Orientation since 1950.” From the perspective of the Korean authorities, life inside the camptown areas was said to represent “moral disorder and a marked decline of Korean morals.” And the yanggongju who had become acculturated to it were viewed as “contaminating agents of acceptable Korean social behavior,” according to Moos.
Remarkably, 40 years later, the women who appeared in the Hongdae club photos were viewed in the same way, and even the Hongdae area was treated as if it had become morally contaminated like a U.S. military camptown.
Seeing two familiar folk devils like the lascivious Western male and the yanggongju successfully incite a nationalist movement to expel foreigners as an AIDS threat recalls the nation’s earliest attempts to impose HIV restrictions on foreigners some 20 years earlier. These efforts culminated in public demonstrations around the time of the 1988 Olympic Games and ultimately found legal expression in an amendment to the AIDS Prevention Act that was passed on Nov. 28, 1987, eight months after the first death of a Korean from AIDS was reported.
The HIV restrictions for foreigners that were initially contemplated for inclusion in the act took two approaches to AIDS prevention: exclusion from the territory and expulsion. A Korea Times article published on March 21, 1987, titled “Korea to expel foreigners infected by the AIDS virus” reported that “the anti-AIDS law … will allow the Justice Ministry to refuse the entry of AIDS-causing virus carriers and to order the departure of foreign residents carrying or suffering from the dreadful disease.” Nevertheless, although popular support for the legislation was strong, neither of these approaches were fully realized.
Attempts by activists to expel foreigners were directed at U.S. Forces Korea (USFK) and their relations with so-called yanggongju in the camptown areas. Activists made clear that their attempts to expel AIDS from Korea were part of a larger symbolic effort to “drive out the obscene American culture which holds Korean women in contempt,” as was reported by a Donga Ilbo article published on Oct. 14, 1988, titled “Obscene magazines, degenerate movies, AIDS: ‘Let’s expel low-quality American culture.’”
The Donga Ilbo article explored ways “to expel AIDS and American pornographic prostitution culture.” It also claimed that “the spread of AIDS is not a problem limited to some prostitutes but is a threat to the independence of the nation.” Activists in the article linked “the ravaging of Korean women by U.S. forces in Korea” with the “unfair ROK-U.S. Status of Forces Agreement” (SOFA), which they argued allowed USFK to act with impunity and to treat Korean females like “conquered women.”
According to the December 1988 Korea Times article “SOFA Emerges as Major Cause of Anti-Americanism,” politicians from the Party for Peace and Democracy backed the activists’ calls for mandatory tests for U.S. soldiers and touted SOFA revisions as a means toward the “full restoration of sovereignty and national pride.” As they were unable to alter SOFA, however, U.S. soldiers remained out of reach of legislators.
AIDS and the 1988 Olympics
Koreans, foreigners and ‘AIDS-free certificates’
While attempts at expulsion were aimed at American soldiers, the Aug. 31, 1988, Milwaukee Journal article “Koreans Demand AIDS Tests: Groups Want Mandatory Screening of Visitors to Olympics,” efforts to exclude foreigners suspected of being HIV positive were focused on the mass of foreign tourists arriving for the Olympic Games in 1988, a population who many feared would spread AIDS among an estimated 1 million South Korean sex workers.
In the lead up to the Olympic Games, it was clear that the government also had public health concerns about the impending influx of foreigners and was vacillating on whether to stand with the emerging position of the international community or to seek mandatory HIV screenings for the foreign Olympic visitors. A year before the start of the Games, on July 15, 1987, Health and Social Affairs Minister Rhee Hai-won was quoted in the JoongAng Ilbo as saying that “there will be some 300,000 tourists from all over the world coming to stay in our country for three months, but as there are no measures in place to prevent AIDS infection, there are concerns that after the Olympics a domestic outbreak of AIDS will occur.”
In May 1987, at the 40th World Health Assembly in Geneva, Yonhap News reported that Rhee told member nations, “in some countries of the world, foreign AIDS carriers or patients are the main factors behind the spread of AIDS.” Rhee urged the WHO to adopt “strong measures” and stressed that “(t)he only way to prevent foreign AIDS carriers from spreading the disease is to examine overseas travelers before they leave their countries, especially those nations with a large number of AIDS patients,” he added. Rhee proposed that overseas travelers therefore be required to carry HIV/AIDS-free health certificates. Rhee’s proposal, however, was not accepted.
When it was reported in the international press that South Korea would require Olympic tourists to carry “AIDS-free certificates” Rhee quickly backed away from his earlier statements and the ROK made no further demands for screenings. The Toronto Star ran a story on July 15, 1987, titled: “Olympic Games Tourists Must be AIDS-Free, South Korea Says,” and “Olympic Tourists Must Carry AIDS-free Bill” appeared in the Manila Standard the next day.
With mandatory screenings for Olympic visitors out of reach, the government focused its efforts on discouraging sex between Koreans and foreigners. Peter Hartcher’s Sydney Morning Herald article on April 5, 1988, “Seoul: Look But Don’t Touch” illustrated this point. A special police force was set up to stand guard at tourist hotels throughout the city in order to prevent foreign guests from entering with Korean sex workers. Pornographic magazines were removed from hotel bookstores. Olympic hostesses acting as interpreters and assistants for foreign delegates were warned not to have sex with them or risk contracting AIDS. On the eve of the Olympics, the Seoul municipal government distributed “pamphlets were distributed to all households in the city that warned citizens to take every precaution to avoid the “horrible disease.” Each mentioned that the first diagnosed AIDS case in Korea was an American, and stressed the high number of AIDS cases overseas.
By December 1988, the AIDS Prevention Act had already been in force for over a year but no foreigners had yet been made subject to its application: Olympic tourists had been able to avoid the legislation, U.S. soldiers were still shielded by SOFA and a political battle was under way over which group of foreigners the act should be able to reach in their stead. The opposition party had pushed for an amendment requiring “AIDS-free certificates” for all foreign arrivals, but in a compromise with the government, settled on tests for foreigners staying for longer than three months, or so-called “long-term sojourners,” according to Nam Yu-chol’s Korea Times article on Jan. 31, 1989. The question then became which of these “long-term sojourners” should be subjected to the tests, a situation a health ministry official in the same article called the “obscene problem (of trying) to sort out ‘targeted’ foreigners.”
Parallels to today
English teachers as the new American soldiers
A similar issue would be faced by the MOJ in 2007 when it selected the E-2 visa category in an attempt to expel the native English speakers who may have been in possession of any number of visa categories teaching English in the country illegally, including tourist visas.
In the case of the amendment to the AIDS Prevention Act in 1988, the “targeted foreigners” eventually became those on E-6 visas, the so-called “entertainer’s visa,” an awkward visa category that includes actors, fashion models, professional athletes as well as sex workers. The June 18, 1988, presidential decree listed the “examination subjects” as “those entering the country with the goal of sojourning for 91 days or more to engage in performance entertainment, show business, sports and entertainment-related businesses or activities in order to make a profit.”
The procedure set up under the AIDS Prevention Act could be said to represent the legal expression of the movement in 1988 that sought to exclude foreigners with HIV from Korea. That is, the act made clear that HIV/AIDS-free certificates were to be issued by a “medical center in the sending country of the visa applicant,” according to the act, and was to be presented to the Ministry of Health “before entering the country.”
Put succinctly, foreigners living with HIV were to be thereby excluded from Korean territory.
The procedure for E-2 visa holders, however, which takes place independent of the AIDS Prevention Act, is very different and can properly be said to represent a popular movement to expel foreigners from Korea. In fact, even for newly arriving native English speakers, the new policy memo dictated that E-2 visa holders must be HIV tested only after entering the Republic of Korea at hospitals inside Korea, and rather than submitting the HIV/AIDS-free certificates to the Ministry of Health, E-2 visa holders were required to submit them to the Ministry of Justice when they register for alien residency, which occurred any time up to three months after entry.
After a year and a half in effect, this policy memo became an attachment to an immigration control act enforcement regulation in April 2009.
The restrictions for foreign teachers in 2007 thus went further than those under the AIDS Prevention Act in 1988, and most resembled failed attempts to expel U.S. soldiers with mandatory HIV testing.
Foreign teachers are unlike foreign soldiers in that they are without any SOFA-like extraterritorial protections.
Thus, in choosing to focus its efforts on foreign teachers, the Citizens’ Group’s movement was able to accomplish what earlier groups had failed to achieve: mandatory HIV tests and deportations targeted at a group of non-Korean men (a large number of whom were American) residing in Korea who were seen as acting with impunity and treating Korean women with contempt. There is little doubt that the members of the group view such an accomplishment as significant progress in the “restoration of sovereignty and national pride,” as the Party for Peace and Democracy put it in 1988.
There are similarities between the two attempts to impose mandatory HIV tests on foreigners, despite the fact that they occurred 20 years apart. A remarkable contrast, however, is that while it took years of political wrangling and legislative action before the first E-6 visa holding foreigners were finally screened for HIV under the AIDS Prevention Act, the in-country test and deportation policy for foreign teachers on E-2 visas took only two months to be implemented and was created on the authority of a policy memo without even a law being passed.
Challenges raised regarding the ability of an immigration policy memo, created without legislative oversight, to impose such severe restrictions on the rights of foreign residents were met with an explanation from the MOJ declaring that the “policy memo has enough legal authority to implement the visa requirement as it was created by the Justice Ministry on the government’s behalf,” according to the article “Visa Rules for Foreign English Teachers Challenged,” published by the JoongAng Daily on Feb. 5, 2009. In April 2009, the MOJ’s October 2007 policy memo was finally included as an attachment to administrative immigration regulations and thus — after being in effect for a year and a half — achieved some semblance of legality.
Strikingly, in the case of the HIV retests demanded by the Ministry of Education for foreign teachers working in public schools, there are no legal regulations at all; foreign teachers are simply required by various government education offices to present medical certificates from designated Korean hospitals demonstrating HIV-negative status before they are allowed to renew their one-year employment contracts.
Exhausting domestic remedies
Lisa Griffin’s ordeal began shortly after she refused to take an HIV for a public school position in Ulsan in 2009. The school refused to renew her contract, and she was forced to leave the country. Her attorney at the time was Kyunghee University law school professor Benjamin Wagner — one of the authors of this article.
She filed a complaint with the National Human Rights Commission of Korea, which was ultimately rejected. She also put in a request to the Korean Commercial Arbitration Board (KCAB) for nonadversarial mediation with her school — which was also refused. The case then went into arbitration, where, after two years, the board ruled against her.
With domestic remedies exhausted, there was another option: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
In February 2009, members of a foreign teachers association in Korea filed some 50 individual complaints against the HIV and drug test measures with the National Human Rights Commission of Korea (NHRCK). The teachers’ complaints were supported by Human Rights Watch, an international nongovernmental organization, which submitted an open letter “strongly (urging) 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.”
In June 2009, the Korean Public Interest Lawyers’ Group (Gong-gam) petitioned the Constitutional Court of the Republic of Korea on behalf of Andrea Vandom, now a Ph.D. student in International Relations at the University of California. Vandom’s attorney — also one of the authors of this report — argued that the HIV and drug test requirements had been “imposed with no reasonable ground,” as reported in the The Korea Times on Jun. 2, 2009, and were “based on vague prejudice and bias that foreign English teachers have disordered sex lives and use drugs.” The same month the Korea Times reported that the NHRCK told the press it planned “to hold a public hearing on the (E-2 visa issue in June) in order to finalize an official position as early as July.”
However, the NHRCK canceled its plans for a public hearing and, instead of issuing any recommendations as promised, rejected all complaints. Complainants received identical rejection letters, which read, “regarding the claim about health checks including HIV test the Commission deems it inappropriate to investigate as an individual complaint.” One complainant who received the rejection letter from the NHRCK posted it on the internet for public access.
On Sept. 29, 2011, nearly two and a half years after Vandom’s petition was filed with the Constitutional Court, the court rejected her complaint. The court examined the “E-2 Applicant’s Health Statement” contained in article 76, paragraph 1, attachment 5 of the Immigration Control Act Enforcement Regulations and found that since Vandom was not an E-2 visa applicant but seeking to extend her E-2 visa she lacked standing to challenge the regulation. Because Vandom was residing in Korea when the HIV and drug tests were first introduced, she was never required to prepare the questionnaire as a visa applicant that would eventually become a mandatory test requirement once she arrived in Korea. Nevertheless, the MOJ demanded that she submit test results for HIV and drugs and had threatened her publically with deportation if she refused.
The Court’s disinclination to adjudicate the controversial case is apparent. In a separate but concurring opinion Judge Kim Jong-dae argued that Vandom’s petition should be rejected because “(under) our Constitution only ‘nationals’ (gungmin) are entitled to fundamental rights.”
Nevertheless, while Vandom’s attorney had presented international law arguments against the HIV and drug tests based on the ROK’s commitments under the ICCPR and the ICERD, neither Judge Kim nor any other judge took note of them.
Such a result, unfortunately, is to be expected. As In-seop Chung, a leading scholar in Korean constitutional law, explained in “An Analysis of the Korean Constitutional Court’s Jurisprudence from an International Law Perspective”: “the Korean Constitutional Court has generally been reluctant to invoke or employ international law in general and international human rights law in particular as an adjudicatory norm or standard.”
Rejected by both the Constitutional Court and NHRCK, after substantial delays in both cases, foreign teachers have watched the discriminatory requirements become further institutionalized. The one-time HIV and drug test requirements rushed into place during a moral panic by the MOJ on the authority of a policy memo have become repeat annual requirements for native speaker employees of regional educational office around the country.
Foreman — the married, law-abiding, disease-free and certified teacher — isn’t happy with the tests.
“It’s inconvenient. It’s painful. Not only do I have to have my blood taken every year and have the results given to my school, but I also have to pee into a cup for other STDs and have those results given to my school, too.
“It’s degrading to be tested over and over again,” he says. “And I resent having to do it when Koreans who come to my country don’t have to do it. My Korean co-teachers don’t have to do it. Only E-2 (visa holders) have to do it. It’s absurd. I’m married to a Canadian so I don’t have an F-2 visa, but (even if I did) what’s the difference?
“I’m not Korean and my wife’s not Korean, and that’s why they’re taking my blood. Stop taking my blood.”
A version of this article was previously published in the Journal of Korean Law, Vol. 11, No. 2 (June 2012), pp. 179-245. Reprinted and adapted with the permission of the Journal of Korean Law. The views expressed here do not necessarily represent those of the Journal or Groove Korea. — Ed.