SEOUL — The Office of the U.N. High Commissioner for Human Rights has accepted a claim against South Korea filed by a New Zealand woman who was employed as an English teacher in the country. The case challenges mandatory HIV testing for many foreigners working in South Korea.
Those who come to South Korea to teach English - and engage in some other occupations - are required to have criminal background checks and tests for illegal drugs and the HIV virus.
South Korean nationals in equivalent jobs are not required to submit to such scrutiny.
One former teacher, told to have a second HIV test within nine months after her first clean results, appealed to the U.N.'s International Committee on the Elimination of Racial Discrimination, known as CERD.
The committee is composed of independent experts monitoring implementation of the Convention on the Elimination of All Forms of Racial Discrimination.
Lisa Griffin contends South Korea uses HIV tests as a proxy for racial discrimination. She says the mandatory tests stigmatize foreigners as people who are a high-risk for AIDS, which leads to local hostility against them.
Griffin had to leave South Korea in September 2009 after a school near Ulsan refused to renew her elementary school teaching contract because she did not submit to HIV re-testing under education ministry regulations.
Her attorney, Kyunghee University law school professor Benjamin Wagner, says Griffin had already submitted to a mandatory test required by the justice ministry.
“She had been tested earlier. Her (HIV) status was negative. And she felt that there was no legitimate reason at that point, other than her being a foreigner, for her to be tested for HIV,” Wagner explained.
Griffin's efforts to get South Korea to change its policy failed. That cleared the way for the case to be filed with CERD, in Geneva, which accepted the claim after seven months of deliberation.
Professor Wagner says this marks the first time the treaty is being used to remedy alleged racial discrimination in South Korea.
“The Ministry of Education that's doing the secondary testing, or the re-testing that this particular case is about, has said that they don't think that teachers have HIV or have the ability to transmit it in the classrooms. They just want to assure parents. So it's a symbolic test," Wagner added. "The testing is being done in order to give people peace of mind.”
In an e-mailed statement, Griffin - who is now employed in the United States - expresses pleasure with the international committee accepting her case and lamenting arbitration failed in South Korea.
“Presuming that someone is HIV positive and likely to be a threat to the public health merely because of their race or ethnicity is wrong," Griffin said in an email statement to VOA. "Racial discrimination has no place in the 21st century and to have government agencies that either turn a blind eye to or actively preserve and promote such outdated ideas is unconscionable.”
The president of the New Right (wing) Parents' Union, Kim Jong-il, says HIV testing of foreign teachers must be maintained to protect the health of South Koreans.
Kim says there are many criminals coming to teach in South Korea, who hide their backgrounds. Since they have contact with young students, he contends, the testing should remain mandatory so the relatively low AIDS rate in South Korea does not increase.
Some lawmakers have also advocated mandatory testing for all foreigners who want to work in the country.
Professor Wagner stresses Griffin's legal action is not meant to discourage HIV testing. “Obviously public health is very important. Testing for AIDS should be encouraged. Korea definitely has a right to protect its public health and it's in its interest," Wagner stated. "But what's the best way to go about doing that without increasing racial discrimination or xenophobia. So the CERD should be able to provide some guidance and that's ultimately what the case is about."
Wagner expresses confidence they will win the case and it will prompt positive change in the country. He notes South Korea is a binding signatory to the anti-discrimination treaty. The government has four months to respond to Griffin's claim, which was accepted in Geneva on July 10.
The Foreign Ministry acknowledges it received the documents from CERD this week. Officials say they are consulting with relevant domestic agencies in anticipation of making a complete response.
U.N. Secretary General Ban Ki-moon (a former South Korean foreign minister) has personally requested the government drop mandatory HIV testing of foreigners.
The United States and South Korea issued a joint declaration in 2010 saying each had dropped its HIV restrictions. But South Korea exempted the testing of foreign teachers from that pledge.
Youmi Kim, VOA Seoul Bureau contributed to this report.