It’s High Time for South Korean Courts to Recognize the Multiethnic Character of Contemporary Korean Society
South Korean Courts must begin to recognize the country’s obligation to eliminate racial discrimination and xenophobia under the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”).
South Korea has waited too long for lawmakers to pass a comprehensive anti-discrimination law. Year after year, promises are made and then broken as this essential work remains undone.
In the meantime, articles frequently appear in the Korean media — often with statements from lawmakers or officials — lamenting the fact that without a specific law in place there is nothing that can be done to prevent discrimination. While such reports tend to be sympathetic, they are also inaccurate. Not only does Korean law provide for remedies for specific acts of racial discrimination, but Korea’s international human rights treaties (which form part of Korean domestic law) offer remedies as well.
“Equality at law” is a fundamental principle enshrined in the Korean Constitution.
The Korean Constitutional Court has an important decision from 2001 dealing with discriminatory immigration standards between ethnic Korean non-nationals from countries like the US and Japan who generally receive more favorable treatment and ethnic Koreans from countries like China and Russia who receive less favorable treatment. While the case involves ethnic Koreans, the “foreigner” issue arises as the complainants in the case were Chinese nationals:
“In its earlier decision, the Court ruled that a . . . ‘foreigner’ who has a status similar to that of a national [gungmin] can be the bearer of basic rights (6–2 KCCR 477, 480, 93Hun-ma120, December 29, 1994). Thus, a foreigner is entitled to basic rights in principle. The complainants argue that their human dignity and worth and right to pursue happiness have been violated . . . These are ‘human rights,’ and a foreigner can be the bearer of these rights. The right to equality is also a human right, and a foreigner’s right to equality can only be limited subject to the nature of the right concerned, such as the right to political participation, or the principle of reciprocity. . . . [The complainants] allege that their right of equality has been violated because of discrimination between ethnic Koreans with foreign nationalities. In this case, the complainants are entitled to the right of equality without any restriction imposed by the nature of the right concerned or the principle of reciprocity. Therefore, the complainants can be recognized as bearers of basic rights.” [Decision of Nov. 29 2001, 99 Hun-ma 494 (Constitutional Court of Korea)]
Nevertheless, in another case from 2011 that dealt with the rights of foreigners without any claim to Korean heritage, the Constitutional Court was much less expansive in its view of the basic rights and the proper standard of equality to be applied to non-Koreans. In that case, Constitutional Court Judge Kim Jong-dae said, “[under] our Constitution only ‘nationals’ [gungmin] are entitled to fundamental rights”. [Decision of Sep. 29, 2011, 2009 Hun-ma 358 (Constitutional Court of Korea)] In the same case, however, Judge Kim did go on to clarify that “the legal rights of foreigners falls within the range of international law and treaties”. This statement is significant as it references an important article of the Korean Constitution:
Article 6 (Treaties, Foreigners)
(1) Treaties duly concluded and promulgated under the Constitution and the generally recognized rule of international law shall have the same effect as the domestic laws of the Republic of Korea.
(2) The status of foreigners shall be guaranteed as prescribed by international law and treaties.
Article 6 of the Korean Constitution makes two important points: 1) Korea’s international treaties are binding with the same force as Korean domestic law; and 2) that these treaties guarantee important rights to Korea’s noncitizen residents.
Professor Kyong-Whan Ahn, a Korean legal scholar and professor emeritus at Seoul National University’s School of Law, noted in 1997 that while the Korean Constitution’s equal protection clause should provide effective remedies, the standard used by the Korean courts to determine whether an incidence of discrimination has occurred was seriously underdeveloped. One reason, Ahn explained, is that “Korea has historically been an extremely mono-cultural state” where “[n]o race or place of origin issue has ever bothered the Korean judiciary.”
Those days, however, are long gone. Korea has become a multiethnic country with citizens and noncitizens from diverse backgrounds. Indeed, the government has estimated that by 2020 a third of all Korean newborns will be multiethnic. That figure increases to half for Koreans born in rural areas.
The Status of the ICERD as Domestic Law in South Korea
The Committee on the Elimination of Racial Discrimination (“Committee”), which monitors the domestic implementation of the treaty, is composed of 18 international human rights experts serving four year terms. The ICERD itself of one of the oldest human rights treaties and belongs among the six core human rights treaties of international law.
Nevertheless, even though Korea has been a party to the treaty since 1978, the ICERD has never been mentioned by a single Korean court as a legal authority. This is troubling for at least two reasons:
First, as Korea has explained to the Committee, “the relative lack of multiethnic experiences have been conducive to . . . prejudice against foreign cultures and people” and “[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”.
Second, the status of the ICERD is unique in that “it has the same authority of domestic law and does not necessitate additional legislation,” as the Republic of Korea has itself made clear to the Committee on several occasions. Yet, as the Committee has responded, “although the Convention forms part of the domestic law and is directly applicable in the courts of [South Korea], there are no court decisions which contain references to or confirm the direct applicability of its provisions.”
The Committee has pointed out to the Korean government that the situation may be the result of “a lack of awareness of the availability of legal remedies” and has recommended “information campaigns and education programmes on the Convention and its provisions.” Unfortunately, however, the treaty remains relatively unknown in Korea and neither the government nor the courts have done enough to change that.
The ICERD’s Individual Complaint Procedure: A Way to Help Korea Recall its Special Relationship with the ICERD and Recognize the Multiethnic Character of Contemporary Society
While many countries are party to the ICERD, very few (only about 30%) have decided to take the extra step of becoming a party to the ICERD’s optional Article 14 Individual Complaint Procedure. Countries deciding to take this extra step toward eliminating racial discrimination agree to recognize the competence of the Committee to act like a court in examining individual cases of racial discrimination occurring within their respective territories. Once a complaint has been accepted by the Committee, Article 14 gives the Committee the power to independently examine the case “in the light of all information made available to it by the State party concerned and by the petitioner”.
In 1997, the year Professor Ahn remarked on the underdeveloped nature of the Korean Constitution’s equal protection clause, the Republic of Korea, to its credit, took the extra step of becoming party to the ICERD’s optional Article 14 Individual Complaint Procedure.
The Committee had never considered a complaint against Korea under the ICERD’s Individual Complaint Procedure, but that changed this year.
In May 2015, the United Nations Committee on the Elimination of Racial Discrimination decided the case of an ethnically non-Korean teacher living and working in the country. The case involved a challenge against mandatory tests for drug use and HIV/AIDS that only applied to non-Korean teachers. The Korean government had instituted the tests as misguided protective measures for Korean children on the theory that the racial status of foreign teachers as non-Koreans made them more likely to endanger Korean children by illegal drug use and spreading HIV/AIDS.
The Committee accepted the case in 2012 after the teacher had spent several years exhausting all possible legal solutions in Korea (a prerequisite for bringing complaints under the ICERD), including filing unsuccessful complaint with the National Human Rights Commission of Korea. In 2015, however, the Committee found in favor of the teacher and ruled that Korean government measures were racially discriminatory. This victory shows that while remedies for racial discrimination in Korea are still elusive, there are in fact laws against it and the means to challenge racial discrimination in the Korean courts and at the international level do exist.
As South Korea becomes an increasingly diverse and open society, the failure of politicians to pass an anti-discrimination law has become increasingly untenable. The situation becomes even worse when Korean courts refuse to acknowledge the nation’s binding treaty commitments to eliminate racial discrimination and xenophobia, which Korea has voluntarily made at the international level. It’s high time for Korean Courts to recognize the multiethnic character of contemporary Korean society and to use the ICERD as a gap-filling means to provide necessary protections against discrimination until a comprehensive anti-discrimination law is finally passed.
— Benjamin K. Wagner