South Korean Courts Are Ready to Recognize the Multiethnic Character of Contemporary Korean Society (but to do so more Korean lawyers must be willing to bring racial discrimination lawsuits)


UPDATE: (December 2017) Liberian woman wins defamation judgment after being harassed by elderly Korean”. This important judgment follows the landmark judgment of 2009 brought by Indian man for racial insults.

UPDATE: (June 2017) Dr. Chung Chin-sung, a professor at Seoul National University, was elected to serve a three-year term (starting in 2018) on the Committee on the Elimination of Racial Discrimination.

South Korean Courts are ready and willing to recognize the country’s obligation to eliminate racial discrimination and xenophobia, but in order to do so more Korean lawyers must be willing to bring these cases to court.

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 inaccurate. Korean law, in fact, does provide for remedies for specific acts of racial discrimination —they just haven’t been used enough. (See e.g., the 2009 case of Indian man Hussain and 2017 case of Liberian woman “T”).

“Equality at law” is a fundamental principle enshrined in the Korean Constitution; and it applies to protect all people residing in the Republic of Korea regardless of race, nationality or citizenship.

There is an important Korean Constitutional Court decision from 2001 which dealt with discriminatory immigration standards between ethnic Korean non-nationals from countries like the US and Japan (who generally receive more favorable immigration treatment), and ethnic Koreans from countries like China and Russia (who generally receive less favorable treatment). While the case involves ethnic Koreans, the “foreigner” issue arises as the complainants in the case were ethnic Korean Chinese nationals without Korean citizenship and thus treated as “foreigners” by the Court. Significantly, however, the Court takes the opportunity to explain that the rights of “foreigners” in Korea are protected by the Constitution:

“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.

The relevant treaty is the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), one of the core human rights instruments of international law. The Republic of Korea (“ROK”) choose to become a party to the CERD in 1978 with all its binding obligations. The ROK also chose to become party to the CERD’s optional Article 14 individual complaint procedure, which allows the CERD’s monitoring body to take cases submitted to it by victims of racial discrimination who have been denied remedies in Korea. The ROK could choose to opt out of these procedures but, to its great credit, it has instead chosen to accept the treaty’s binding obligations. (For more info on the special relationship between the ROK and the CERD treaty, see “Scrutinizing Rules for Foreigners in Korea: How Much Discrimination is Reasonable?”).

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 — and that figure increases to half of all Koreans born in rural areas.

And while Korean lawmakers have been very slow in recognizing the multiethnic character of contemporary Korean society, Korean Courts have done better.

Multiethnic Korea: 1 in 20 newborns is multiracial,” Yonhap News (2014).

The Status of the CERD as Domestic Law in South Korea

The Committee on the Elimination of Racial Discrimination (“CERD Committee”), which monitors the domestic implementation of the treaty, is composed of 18 international human rights experts serving four year terms. The CERD itself is one of the oldest human rights treaties and belongs among the six core human rights treaties of international law.

Nevertheless, even though the Republic of Korea has been a party to the treaty since 1978, the CERD 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 CERD 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 CERD 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 CERDCommittee on several occasions. Yet, as the Committee has responded, “although the [CERD] forms part of the domestic law and is directly applicable in the [Korean] courts . . . there are no court decisions which contain references to or confirm the direct applicability of its provisions.”

The CERD 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 CERD’s Individual Complaint Procedure: A Way to Help Korea Recall its Special Relationship with the CERD & Recognize the Multiethnic Character of Contemporary Society

While many countries are party to the CERD, very few (about 30%) have decided to take the extra step of becoming a party to the CERD’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 CERD 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 CERD’s optional Article 14 Individual Complaint Procedure.

The CERD Committee had never considered a complaint against Korea under the CERD’s Individual Complaint Procedure, but that changed in 2015.

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 Korean government claimed it used the tests to check the “values and morality” of the foreign teachers.

The CERD 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 CERD), including filing unsuccessful complaint with the National Human Rights Commission of Korea (“NHRCK”). In 2015, however, the Committee found in favor of the teacher and ruled that Korean government measures were racially discriminatory.

In 2016, the NHRCK issued a detailed opinion on the matter (also in Korean), recommending that the government eliminate the racially discriminatory requirements and “produce measures to address the opinion adopted by the Committee on the Elimination of Racial Discrimination” including compensation for the victim of racial discrimination. In 2017, the Korean government finally eliminated the HIV test requirement. (The racially discriminatory drug test requirement, however, is still in place. Additionally, the government has (as of 2018) still refused to grant compensation for the victim of discrimination in the case; however, a lawsuit is being brought in the Korean courts to make certain the victim receives the remedy recommended by the Committee).

These victories show that while remedies for racial discrimination in Korea are still elusive, there are in fact laws against it and there exist the means to challenge racial discrimination in the Korean courts as well as at the international level. What is needed now are more Korean attorneys (like Choi Jeong-gyu!) willing to bring more cases through the courts until lawmakers get the message that they must enact laws to make clear the obligation to stop discrimination in the Republic of Korea. Until then let the cases come to the Korean Courts which have shown that they are ready recognize the multiethnic character of contemporary Korean society — the CERD as domestic Korean law can act as a gap-filler to provide necessary protections against discrimination until a comprehensive anti-discrimination law is passed.

— Benjamin K. Wagner

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