Mr. Lee Seong-Taek

Investigator

Anti-Discrimination Division

National Human Rights Commission of Korea

Dear Mr. Lee:

Human Rights Watch (HRW) is pleased to have the opportunity to submit this letter for your consideration in conjunction with the National Human Rights Commission of Korea's (NHRCK) upcoming conference on Korea's E-2 Teaching Visa policy. We strongly urge 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.

HRW is an independent non-governmental organization, founded in 1978, that monitors human rights developments in more than eighty countries around the world. Since 2001, HRW has been monitoring human rights violations in the context of the global HIV epidemic. Recognizing the NHRCK's previous work on health and human rights, HRW commends the Commission on its findings in the "Heo" deportation case, and on the issue of mandatory Hepatitis B status disclosure for government hires. HRW hopes that this letter will help to alert the Commission to potential international human rights law and public health concerns implicated by HIV testing requirements in Korea's E-2 Teaching Visa policy.

South Korea is one of only 14 countries worldwide to either categorically refuse entry of persons living with HIV and AIDS or require disclosure of HIV status for entry for short-term stays.[i] Although international human rights law allows for the restriction of rights in the face of public health emergencies, such restrictions must be the minimum intrusion necessary to effectively address the public health concern.[ii] HIV-related restrictions on entry, stay, and residence such as those created by South Korea's E-2 Teaching Visa policy and related immigration laws, however, are unnecessary or even harmful from a public health perspective. Mandatory HIV testing and deportation of HIV-positive foreign workers need to be immediately halted-indeed, United Nations Secretary-General Ban Ki-Moon recently asked Korean government officials to lift Korea's entry restrictions for non-citizens living with HIV[iii]-and legislative priority and government resources should be redirected toward establishing prevention, care, and treatment programs serving non-citizens and citizens alike.

1. Public Health and Human Rights Implications of HIV-Related Restrictions on Entry, Stay and Residence

National restrictions on entry, stay, and residence for persons living with HIV broadly violate international human rights law provisions banning discrimination and upholding equality before the law.[iv]  Following the Universal Declaration of Human Rights,[v] the International Covenant on Civil and Political Rights (ICCPR) guarantees all persons the right to equal protection of the law without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[vi]  The former UN Commission on Human Rights has interpreted this provision to include discrimination based on HIV/AIDS status.[vii]  States must respect this right for all individuals within their territory and subject to their jurisdiction,[viii] regardless of citizenship.[ix]  Indeed, the Human Rights Committee-the ICCPR's monitoring body-has noted that while "[i]t is in principle a matter for the State to decide who it will admit to its territory...in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise."[x] Human rights bodies, such as the European Court of Human Rights, have concluded that states have little freedom to implement entry and residence policies and laws that clearly discriminate against particular groups.[xi]

Restrictions against entry, stay, and residence based on HIV status also run contrary to related human rights principles.  As the Joint United Nations Programme on HIV/AIDS (UNAIDS) has noted, the implementation of these restrictions has regularly violated the human rights principle of non-refoulement (which bars unlawful return) of refugees,[xii] obligations to protect the family, protection of the best interests of the child, the right to privacy, the right to freedom of association, the right to information, and the rights of migrant workers.[xiii]  These restrictions also affect the individual's rights to seek asylum, work, education, the highest attainable standard of health, dignity, and life.

According to international human rights law, to avoid being classified as impermissible discrimination, any difference in treatment that has a negative impact on a particular group-e.g. persons living with HIV or AIDS-has to be justified by being necessary to achieve a compelling purpose and be the least restrictive (meaning least discriminatory) means of achieving that purpose.[xiv]  However, while preservation of public health is a compelling purpose that might justify some forms of restrictions, HIV-related distinctions in entry, stay, and residence do not actually protect public health, and are too broad and coercive[xv] to be the least restrictive means to achieve this end.[xvi]

HIV-related restrictions on entry, stay, and residence have long been recognized by the international community to not be justified by public health goals. The World Health Organization first concluded in 1987 that screening international travelers was not an effective strategy to prevent the spread of HIV[xvii] and advised in 1988 that such screening would be impractical and wasteful.[xviii] The Office of the United Nations High Commissioner for Human Rights and UNAIDS have unequivocally stated that "any restrictions on these rights [to liberty of movement and choice of residence] based on suspected or real HIV status alone, including HIV screening of international travelers, are discriminatory and cannot be justified by public health concerns"[xix] since while HIV is infectious, it cannot be transmitted through casual contact.[xx]  Those countries without HIV-related entry, stay, and residence restrictions have not reported any negative public health consequences.[xxi]

Indeed, HIV-related restrictions on entry, stay, and residence may negatively impact public health for several reasons. First, these restrictions contribute to and reinforce stigma and discrimination against migrant persons living with HIV[xxii] by lending credence to the idea that non-nationals are a danger from which the national population must be protected,[xxiii] and by prejudicially implying that persons living with HIV will act irresponsibly in transmitting the infection.[xxiv] The restrictions make it difficult to discuss and address HIV issues in public, decreasing prevention, testing, and treatment opportunities and uptake,[xxv] and further isolating and marginalizing persons living with HIV.[xxvi] Singling out HIV for entry restrictions and mandatory testing has also been criticized by experts on the grounds that it creates a false sense of security in a country's nationals that only migrants are at risk for HIV,[xxvii] and that border control rather than other means of prevention will curb the spread of HIV/AIDS.[xxviii]

2. HIV-Related Restrictions in Korea's E-2 Visa Policy

Since November 2007, Korean national policy has mandated that E-2 Teaching Visa holders submit a health certificate, including an HIV test, when applying to extend their residence in Korea, and new applicants for the E-2 visa must submit a health certificate including HIV test when applying for alien registration.[xxix] Mandatory HIV testing is closely linked to the practice of deporting those found to be positive. Korea's Immigration Control Act stipulates that immigration officers have a right to deny entry to or to deport those who are carrying a communicable disease,[xxx] and in 2008, the Korea Center for Disease Control and Prevention reported that 521 of the 647 foreigners diagnosed with HIV had been "forced to leave the country."[xxxi]

Mandatory HIV testing for E-2 visa applicants and indeed for any foreign national in Korea as a precondition for entry, stay, or residence, is impermissible under international law. As noted above, according to international human rights law, any difference in treatment that has a negative impact on a particular group-such as persons living with HIV and AIDS-has to be justified by being necessary to achieve a compelling purpose and be the least restrictive (meaning least discriminatory) means of achieving that purpose.[xxxii] Korea's HIV-related requirements in entry, stay, and residence may not be justified because they are unnecessarily discriminatory and do not actually protect the public health.

The complaint submitted by Mr. Benjamin Wagner to the NHRCK on the E-2 visa policy details the influence that media reports on non-citizens' HIV rates, sexual offenses, and drug involvement-as opposed to verifiable public health data-have had in directing the course of that policy.[xxxiii] As noted above, the World Health Organization and UNAIDS have unilaterally declared that restrictions on entry, stay, or residence based on actual or suspected HIV status alone are discriminatory, and cannot be justified by public health concerns. Indeed, public health may be negatively impacted by these restrictions since, as Mr. Wagner notes in his complaint, levels of information on HIV/AIDS in Korea are low, and mandatory testing and deportation of foreign English teachers only serve to perpetuate stigma and discrimination surrounding HIV, and to reinforce the stereotype that foreigners alone are at risk from the disease.[xxxiv]

The NHRCK has been a leader in advancing a human rights-based approach to HIV in Korea, submitting its opinion to the Seoul Administrative Court in the landmark case of "Heo"-a non-citizen ordered deported because he tested positive for HIV-finding that the departure order was likely to infringe on Heo's right to non-discrimination on the basis of medical history. In that instance, the Commission noted that "[i]n light of international human rights standards and foreign cases, it is the opinion of the Commission that ordering a foreigner who has been staying in Korea to leave the country solely because he or she is infected with HIV is extreme. Considering all of the circumstances of the plaintiff, the presence of an HIV-positive person is not likely to pose a grave risk to public health, whereas the order would be an irreversible violation of the plaintiff's basic human rights."[xxxv] In line with the NHRCK's opinion, the 2008 "Heo" decision of the Seoul High Court (upholding the Seoul Administrative Court) found that Heo's deportation would constitute a violation of his human rights, and encouraging testing by protecting the human rights of persons living with HIV rather than deporting them is the most effective means for curbing the spread of HIV and protecting the public health.[xxxvi]

In accordance with its strong stance in favor of human rights for persons living with HIV in the "Heo" case, the NHRCK now has an opportunity to renew its commitment to this population by issuing an opinion against mandatory HIV testing requirements for foreign teachers in Korea's E-2 visa policy. In 2003, the NHRCK recommended that rules requiring disclosure of Hepatitis B status in Korean government hiring be amended or rescinded. Noting that Hepatitis B cannot be transmitted through ordinary work life and mandatory testing for government hires was "illogical if not inappropriate" based on concerns of spreading the disease, the NHRCK found that having one's Hepatitis B status known in the workplace could subject a worker to discrimination.[xxxvii] HRW encourages NHRCK to issue a similar opinion on mandatory HIV testing, stating that the HIV testing requirements in the E-2 visa policy constitute discrimination on the basis of medical condition and should be immediately rescinded.

A decisive call to eliminate mandatory HIV testing provisions in the E-2 visa policy and related refusal of entry or deportation is now more important than ever. Rather than working to reverse such HIV-related restrictions on entry, stay and residence in the wake of the "Heo" decision, some legislators have in fact been trying to expand them. In December 2008, a proposed amendment to the Immigration Control Act was introduced to the National Assembly to establish a legal basis for requiring a health certificate of all foreign workers, extending E-2 visa type medical testing to all foreign workers in Korea.[xxxviii]

Some governments worldwide are working to eliminate HIV-related restrictions on entry, stay and residence: In July 2008, the United States repealed its statutory entry ban for persons living with HIV.[xxxix] The Korean government should devote its energies toward eliminating mandatory HIV testing and HIV-related entry, stay, and residence restrictions, and establishing comprehensive HIV prevention, care, and treatment programs serving both citizens and non-citizens, which would much better serve the health of the estimated 13,000 individuals in Korea living with HIV,[xl] and the Korean population as a whole.[xli] The creation and maintenance of such programmes will be the truly effective long-term strategy in combating this disease from both a public health and a human rights perspective.

We thank you for the opportunity to express these concerns to you, and hope that our recommendations may be of assistance in addressing this important issue.

                                                                                                     

Yours sincerely,                                                                                                        

Joseph Amon, PhD MSPH

Director, Health and Human Rights Division

Human Rights Watch


[i] Deutsche AIDS-Hilfe e.V., "Quick Reference: Travel and Residence Regulations for People with HIV and AIDS -Information for Counsellors in AIDS Service Organizations-2008/2009," Karl Lemmen & Peter Wiessner, 8th edition, September 2008, p. 5. See also "The Global Database on HIV Related Travel Restrictions," www.hivtravel.org (accessed May 21, 2009).

[ii] United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, "Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights," UN Doc E/CN.4/1984/4, 1984.

[iii] Kang Shin-who, "Korea Advised to Lift Ban on Foreigners with AIDS," The Korea Times, June 5, 2009, https://www.koreatimes.co.kr/www/news/nation/2009/06/113_46334.html (accessed June 17, 2009).

[iv] Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess. 1st plen. mtg. U.N. Doc A/810. 1048, art. 7(1). International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16 at 52, U.N. Doc. A/6316, 1966, art. 26. Convention on the Rights of the Child, G.A. Res. 44/25, Annex. 44, U.N. GAOR Supp. No. 49 at 167, U.N. Doc. A/44/49, 1989, art. 2. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, 34. U.N. GAOR Supp. No. 46 at 193. U.N. Doc. A/34/46, 1981. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex. 20 U.N. GAOR Supp. No. 14 at 47, U.N. Doc. A/6014, 1966.

[v] Universal Declaration of Human Rights, art. 7(1).

[vi] International Covenant on Civil and Political Rights, art. 26.

[vii] Commission on Human Rights, "The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)," Resolution 1995/44, March 3, 1995.

[viii] UN Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 26. UN Human Rights Committee, General Comment 15, The position of aliens under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Commendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/ GEN/1/Rev.1 at 18 (1994).

[ix] UN Human Rights Committee, General Comment 15.

[x] Ibid.

[xi] European Court of Human Rights, East African Asians v. United Kingdom, Judgment of 15 December 1973, 3 EHRR 76. Abdulaziz, Cabales and Balkandali v. United Kingdom, Judgment of 24 April 1985, 7 EHRR 471.

[xii] OHCHR and UNAIDS, "International Guidelines on HIV/AIDS and Human Rights."

[xiii] UNAIDS and International Organization for Migration (IOM), "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions," 2004.

[xiv] United Nations, "Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights." UNAIDS and IOM, "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions."

[xv] Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), "International Guidelines on HIV/AIDS and Human Rights," 2006.

[xvi] UNAIDS and IOM, "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions." Andreas Schloenhardt, "From Black Death to Bird Flu: Infectious Diseases and Immigration Restrictions in Asia," New England Journal of International & Comparative Law, vol. 12, no. 2, 2006, pp. 33-64.

[xvii] World Health Organization, "Report of the Consultation on International Travel and HIV Infection," WHO/SPA/GLO/787.1, 1987

[xviii] World Health Organization, "Statement on Screening of International Travelers for Infection with Human Immunodeficiency Virus," WHO/GPA/INF/88.3, 1988.

[xix] Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), "International Guidelines on HIV/AIDS and Human Rights."

[xx] UNAIDS and International Organization for Migration (IOM), "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions." UNAIDS, "Statement of the UNAIDS Secretariat to the Sixty-First World Health Assembly: Agenda Item 11.9 - Health of Migrants," 2008.  

[xxi] GIPA 2010, "Entry Denied: Denying Entry, Stay and Residence Due to HIV Status: Ten Things You Need to Know," 2008, http://www.iasociety.org/Web/WebContent/File/travel_restrictions_English... (accessed June 17, 2009).

[xxii] International AIDS Society, "IAS Policy Paper: Banning Entry of People Living with HIV/AIDS," 2007, http://www.iasociety.org/Web/WebContent/File/ias_policy%20paper_07%2012%... (accessed June 17, 2009).

[xxiii] All-Party Parliamentary Group on AIDS, Migration and HIV, "Improving Lives in Britain: An Inquiry into the Impact of the UK Nationality and Immigration System on People Living with HIV," 2003.

[xxiv] Susan Timberlake, "Travel Restrictions on People Living with HIV: Going Against the Grain of Human Rights and Public Health," XVII International AIDS Conference, Mexico 3-8 August 2008.

[xxv] UNAIDS and IOM, "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions."

[xxvi] All-Party Parliamentary Group on AIDS, "Migration and HIV: Improving Lives in Britain."

[xxvii] Ibid. Maria Gańczak et al., "Break the Silence: HIV/AIDS Knowledge, Attitudes, and Educational Needs Among Arab University Students in United Arab Emirates," Journal of Adolescent Health, vol. 40, 2007, pp.  572.e1-572.e8.

[xxviii] Working Group 1 of AIDS and Mobility in Europe, "HIV/AIDS and Migration in European Printed Media: An Analysis of Daily Newspapers," 2006.

[xxix] Ministry of Justice, Republic of Korea, Residence Policy Division, "New Changes on the E2 Teaching Visa Holders in Korea," December 10, 2007, http://home.windstream.net/ssheiko/e2_changes_en.pdf (accessed June 17, 2009).

[xxx] Ministry of Legislation, "Immigration and Control Act (Republic of Korea)," http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN011498... (accessed June 1, 2009).

[xxxi] Bae Ji-Sook, "Deportation of HIV Positive Violates Human Rights," Korea Times, March 3, 2008.

[xxxii] United Nations, "Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights." UNAIDS and IOM, "UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions."

[xxxiii] Benjamin K. Wagner, "Working Paper: Discrimination Against Non-Citizens in the Republic of Korea in the Context of the E-2 Foreign Language Teaching Visa," May 2009 (on file with Human Rights Watch).

[xxxiv] Ibid., p. 25.

[xxxv] "Deportation of an HIV-Infected Foreigner Is Extreme," National Human Rights Commission of Korea press release, March 31, 2008.

[xxxvi] Seoul High Court, "Heo" Decision. See The Law Times, November 14, 2008, http://www.lawtimes.co.kr/LawNews/News/NewsContents.aspx?kind=AA&serial=... (accessed June 2, 2009).

[xxxvii] "Hiring-Related Medical Exams that Single Out Hepatitis B Carriers Constitutes Discrimination," National Human Rights Commission of Korea press release, November 11, 2003.

[xxxviii] National Assembly, Bill No. 3356, Amendment to the Immigration Control Act, Proposed December 2008.

[xxxix] Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act, H.R. 5501, 2008. A new rule by the Department of Health and Human Services addressing regulatory restrictions is under review and is expected to be posted for public comment soon.

[xl] World Health Organization (WHO), Joint United Nations Programme on HIV/AIDS (UNAIDS) and UNICEF, Epidemiological Fact Sheet on HIV and AIDS: Core Data on Epidemiology and Response: Republic of Korea: 2008 Update," 2008, http://apps.who.int/globalatlas/predefinedReports/EFS2008/full/EFS2008_K... (accessed June 17, 2009).

[xli] Joseph Amon, "Blaming Foreigners," Korea Times, March 12, 2009. Joseph J. Amon and Katherine Wiltenburg Todrys, "Fear of Foreigners: HIV-Related Restrictions on Entry, Stay, and Residence," Journal of the International AIDS Society, vol. 11, no. 8, 2008, http://www.jiasociety.org/content/11/1/8 (accessed June 17, 2009).