ATEK Interview with Prof. Benjamin Wagner

The Association for Teachers of English in Korea (ATEK) recently interviewed Kyunghee University Law School associate professor Benjamin Wagner, who has been researching the legal and human rights issues pertaining to foreign English teachers in Korea. ATEK was kind enough to send me the interview to post here.

A note, however — the content of the interview does not necessarily reflect the views of this blogger, and I’m certainly not advocating anything (and would, of course, welcome dissenting opinions). In fact, for the record, I happens to support criminal background checks and drug tests for English teachers applying for E-2 visas. Nevertheless, what Prof. Wagner has to say is quite interesting, and both the interview and the footnotes are well worth reading.

— Robert Koehler

Text ATEK Interview

In the course of the advocacy that ATEK pursues, we work with various professionals in the education, business, and legal sectors. We have had the good fortune to catch up with Benjamin Wagner, J.D., Associate Professor of Law at Kyunghee University Law School. Professor Wagner is a member of the Hawaii State Bar Association. He teaches International Law and American Law and is a Center for International Human Rights research fellow.

Professor, I understand you’ve been researching English teachers in Korea. How did we get your attention?

It was the E-2 visa requirements, particularly the pre-employment tests for illegal drugs that first sparked my interest back in December 2007. I’m from Hawaii and, at about the same time, the State of Hawaii had decided to implement random drug testing of its public school employees after the arrests of several teachers on drug charges. A Constitutional challenge, on the grounds of the right to privacy, was raised and plans for testing became less certain. ((See e.g. “ACLU will sue to halt teacher drug testing,” Star Bulletin, Sept. 15, 2007. Available at http://archives.starbulletin.com/2007/09/15/news/story02.html; see also e.g. “ACLU Announces Legal Challenge to First-Ever Random Drug Testing Policy for Public School Educators,” ACLU Press Release, Sept. 14, 2007. Available at http://www.acluhawaii.org/news.php?id=277&PHPSESSID=7483ce8224f67fc555773bec7fa08753))

I was discussing the E-2 requirements with some Hawaii colleagues and they were focused on the right to privacy issue, which is obviously of great importance both in Hawaii and here in Korea, but I was more focused on the discrimination issue. This confused them and one attorney asked me, “aren’t they going to test Korean teachers as well?” That’s when I explained that the drug tests – and HIV tests as well – would only be applied to foreign teachers. That raised a few eyebrows to say the least and, through the Center for International Human Rights here at Kyunghee University, I’ve been looking at the issue ever since.

What have you found out?

I began looking for the origin of the E-2 requirements, trying to figure out if there had been a law passed by the National Assembly. I found there had been a bill introduced (about a week after the arrest of Christopher Paul Neil) to amend the Immigration Control Act to provide the “legal basis” (as the bill put it) for requiring drug tests, a medical check, and criminal background checks on foreigners seeking working visas in Korea. The bill failed to reach the floor, because of the BBK crisis at the time, and that was the end of it. Until December 2008, at least, when the same bill was reintroduced. But the E-2 requirements have been in full effect for over a year now, with foreign teachers undergoing in-country drug tests and HIV tests. So that got me wondering what the legal basis for that has been.

What is the current legal basis for the E-2 requirements?

I don’t think there is one. For one thing, the requirements are not regulations (시행규칙 in Korean) as they have often been called. I’ve spoken with the KIS, they’ve been very cooperative, and have explained to me the line of authority they cite as the basis. Basically, it all comes down to a policy memo that was created by the KIS Residence Policy Team. There’s a Korean version (“원어민 회화지도 (E-2) 사증제도 개선 안내,” 2007. 11, 법무부) that used to be up on the KIS website, but it’s since been pulled (I have a copy if anyone’s interested). There’s also a much shorter version in English (“New Changes on the E2 Teaching Visa Holders in Korea,” December 10th, 2007, Residence Policy Division, Korea Immigration Service) that the KIS released. It was also pulled from the KIS website, but there are copies of it out on the web (see e.g. http://home.windstream.net/ssheiko/e2_changes_en.pdf).

The policy memo links English teachers to sex crimes, drugs and fraud, by explaining:

Some E2 teaching visa holders in Korea were caught for fraudulent diplomas, drugs, sexual offenses, etc.

It goes on to explain that the requirements were introduced:

In order to protect children and young students from those criminal offenders and fraudulent diploma holders [because there is] a strong need to counter these problems.

So the E-2 visa requirements aren’t law?

They are certainly being treated as if they were legally based, but they aren’t regulations (시행규칙 in Korean) and they aren’t part of an ordinance (시행령 in Korean). They are part of a policy memo.

The line of authority cited by the KIS (from top to bottom) goes like this: Immigration Control Act (Article 10) > Immigration Enforcement Ordinance (Article 12) (which comes from the Executive branch, so alternatively translated as Presidential Executive Order, or Presidential Decree) > Table 1 > policy memo created by the KIS Residence Policy Division. Now all of these have been around for years so it’s the policy memo that changes things.

This Table 1 (별표1 in Korean), for example, lists various visa types (D-8, D-9, E-1, E-2, etc.) and under “E-2 희화기도 (E-2)”, it states “the Ministry of Justice shall list the requirements and qualifications for foreign language instructors. . . ”. But it is a weak argument to claim this little Table 1 grants complete discretion to fashion any particular requirement the KIS chooses without review, and it certainly wasn’t created to give legal basis for requiring thousands of non-citizens to submit to in-country HIV tests and drug tests. The government is aware of this and that’s why we’re seeing the sudden introduction of bills and ordinances and regulations. There’s a need to create a legal basis (see e.g. Art. 37(2) Constitution of Korea) and a policy memo from a lower echelon immigration division, created without any oversight, just isn’t going to accomplish it.

We’ve heard about the bill under consideration in the National Assembly. We’ve also heard about new rules proposed by immigration. What are they? How are they different?

It is a bit confusing. There was a flurry of legislative efforts just at the close of last year. There is a bill (출입국관리법 일부개정법률안 [신학용의원 대표발의], No. 3356, December 30, 2008), and there is an immigration enforcement ordinance and immigration regulations (출입국관리법 시행령 및 시행규칙 일부개정령(안) 입법예고, 법무부 공고 제2008-158호, December 31, 2008)

The bill was introduced to the National Assembly on December 30, 2008 by 18 members of the National Assembly. This bill would revise the Immigration Control Act and allow the Korean Immigration Service to require criminal background checks and medical testing as a condition of entry for any foreigners looking to come to Korea on working visas.

Condition of entry: this means they’d have to have the checks and tests done before they arrive?

The specific language of the proposed revisions says “소속 국가에서 발행한 건강검진증명서”, which appears to require the medical certificate to be issued by the ‘sending country’ – the home country of the visa applicant.

And the ordinance?

Notice of immigration enforcement ordinance (출입국관리법 시행령) was given by the Ministry of Justice on December 31, 2008 and will be submitted to the Ministry of Government Legislation for approval. This ordinance has nothing to do with the E-2 visa or English teachers.

But the Chosun published an article called “Bar for Foreign English Teachers Raised” saying: “a revision of the enforcement ordinance of the Immigration Control Law that prohibits granting work permits to those with criminal records. The law requires those wishing to obtain the E-2 visa to submit a police certificate of their personal criminal history issued in the country of citizenship or residence and stamped by the Korean embassy. The new version also requires the applicants to hand in a health certificate to show the person has no infectious or sexually transmitted diseases . . .”

That is inaccurate in several aspects. There is no current Immigration enforcement ordinance on the E-2 visa requirements, so the “revision” comment is incorrect. And as English teachers know the requirements listed have been in effect for over a year now, so I don’t see how the ‘bar has been raised”. The enforcement ordinance I mentioned is available on the MOJ website, people can take a look at it. It doesn’t deal with the E-2.

So what are they talking about in the Chosun article?

It looks like they are referring to the regulations I mentioned that were introduced at the same time. Most likely the newspaper has confused the regulations and the ordinance. The proposed regulations on the E-2 visa list requirements, though the requirements as listed in the regulations are not as the newspaper article explains.

Ok, so what do the proposed regulations say?

Very little. Here are the complete proposed E-2 visa regulations:

1. 교육과학기술부 또는 시․도 교육청 주관으로 모집․선발되어 초․중등학교에서 외국어 회화지도에 종사하려는 자
○ 학위증(졸업증명서) 또는 재학증명서(자국 소재 대한민국 공관 확인 필요)
○ 시․도 교육감이나 국립국제교육원장이 발급한 합격통지서․초청장 또는 시․도 교육감의 고용추천서
2. 그 밖의 기관․단체에서 외국어 회화지도에 종사하려는 자
○ 학위증 사본(자국소재 대한민국공관 확인 필요)
○ 국적국 및 거주국의 관할기관이 발급한 범죄경력에 관한 증명서(자국 및 거주국 소재 대한민국공관 확인 필요)
○ 자기 건강확인서
○ 고용계약서
○ 학원 또는 단체 설립관련 서류
○ 신원보증서
○ 성적증명서(출신학교에서 봉인하여 발급한 것에 한함)

The underlined portion lists the proposed changes that were not previously part of the E-2 regulations. The first underlined section mentions the criminal background checks. The second underlined section which reads “자기 건강확인서” pertains to the HIV tests and drug tests, translated it simply means: “Self Health Check”.

What? How can that require drug tests and HIV tests?

It’s done surreptitiously. The regulations include a copy of the Self Health Check in both English and Korean. In English it’s called “E-2 Applicant`s Health Statement”, in Korean it’s called “회화지도(E-2) 강사 자기 건강확인서”. It’s a simple one page form that asks 10 questions. Question 7 and question 9 read:

7. Have you taken any Narcotic (Drug) or have you ever been addicted to alcohol in the last 5 years?
Yes □ (Narcotic name: ), No □

9) Are OR were you HIV (AIDS) positive?
Yes □ , No □

So it appears to be a “self-check” until you get to the bottom of the page, which reads:

NOTICE :
. . . At the time of registration, You MUST submit your Health Certificate obtained from the hospital which has been designated by the Korean Government.

It’s this final sentence in the “NOTICE” that makes this so-called “self-check” into the type of medical tests that have been in effect for a year now: namely, mandatory HIV and drug tests at Korean hospitals.

So what you’re saying is that these medical tests have been going on for a year now and there have been no regulations for it?

Yes. I was surprised to see the newspaper write up talking about new E-2 visa requirements, the ‘bar for English teachers being raised’ and whatnot, because the requirements under the newly proposed regulations are exactly what has been required of teachers for the past year.

What was the basis for the requirements for the past year? What are the grounds for requiring HIV and drug tests introduced in the first place?

It all goes back to the policy memo, and as I’ve said I don’t think it provides a legal basis for the HIV and drug test requirements at all. I think the government realizes this as well, thus the proposed regulations and the proposed bill.

As for the grounds of the E-2 policy memo requirements – there are no reasonable, objective or factually based grounds for requiring HIV and drug tests for foreign teachers only.

Everyone can see this is discriminatory, but how do you going about showing that?

Well, what I wanted to do is to give the Korean government a chance to show why they thought the requirements aren’t discriminatory, because, as you say, they certainly appear discriminatory on their face.

The policy memo attempts to provide justification for the new requirements by saying “Some E2 teaching visa holders in Korea were caught for fraudulent diplomas, drugs, sexual offenses, etc. [and] In order to protect children and young students from those criminal offenders and fraudulent diploma holders [there is] a strong need to counter these problems.”

There was also a quote from a Ministry of Justice official in the Korea Herald from December 2007, which explained that the E-2 visa policy was implemented because: “Drug use and other criminal activities carried out by foreign English teachers have been a social issue for some time, and have built up to dangerous levels in recent years.” ((“E-2 visa holders to need medical, criminal checks – starting in December 2007” http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2007/11/07/200711070060.asp (Emphasis added).))

So, in line with the argument the government has presented, I asked for clarification on what they meant by “dangerous levels”. The policy memo says “some”, I wanted to know how many arrests of English teachers that represents.

Who did you ask for clarification on that?

I spoke with KIS, and they were quite cooperative as I mentioned, but disturbingly they don’t keep records on the criminal offenses of E-2 visa holders.

Wait a minute! How is it possible that officials are making statements if they don’t keep statistics?

There should be accurate data kept on E-2 visa holders, but the KIS doesn’t have that data available. In Korea, it is the Supreme Prosecutors’ Office (“SPO”) that has the most complete records of criminal offenses; but, generally speaking, the SPO doesn’t track arrests by visa type. They can provide you with data on “foreigner” arrests in general, but not by visa type. That kind of data is useful in extrapolating some general facts on foreigner crime rates, and what you get are Korean citizen crime rates as several times higher than non-citizen crime rates, but this is generally well known. The Korean Institute of Criminology, for example, reported that in 2007 the overall “crime rate among foreigners was 1.4% compared with the 3.5% rate among Korean citizens.” ((See “외국인 범죄율은 낮지만 건수는 크게 늘어”, (A small increase in the number of crimes by foreigners), Chosun Ilbo, July 9 2008. Available at
http://news.chosun.com/site/data/html_dir/2008/07/09/2008070900054.html
English translation available at http://koreabeat.com/?p=1217))

I’ve seen those statistics and I think it’s wrong that although Korean crime rates are two and a half times that of foreigners, Korean hagwon teachers aren’t required by law to undergo criminal background checks.

I’m not so much focused on the criminal background checks or the academic degree verification process, because, generally speaking, Korean citizen public school teachers have similar requirements. But, as you mention, I haven’t been able to find a law requiring Korean private institute teachers to provide criminal background checks. I believe F-2 and F-4 visa holders can also avoid criminal background checks, in addition to the other E-2 requirements. When F-2s and F-4s are doing the same work as other non-citizens on E-2 visas, not holding them same requirements would also be discriminatory.

Have you been able to find any more specific data on English teachers’ crimes?

I found a white paper published by the Narcotics Division of the Supreme Prosecutors’ Office (“2007 마약류범죄백서”). The paper linked an increase in drug crime from 2006 to 2007 to foreign English teachers. I approached the Narcotics Division for more information. I should mention before continuing that the Narcotics Division was very helpful and has an incredibly professional group of individuals working for them. They were able to provide me with specific data on the drug arrests of English teachers from 2005 through November 2008.

Drug Arrests ((The Supreme Prosecutors’ Office reports statistics of drug “arrests,” which may or may not have led to a conviction. Also note that drug arrests of “English teachers” may include English teachers not working on E-2 visas. According to the Supreme Prosecutors’ Office: “it is very hard to check if they have E-2 visa or not But generally, english teacher who are foreigner in Korea have E-2 visa”, email communication.)) of Foreign English Teachers in Korea
Year	Types of Drugs		Total Arrests	Number of E-2 Visa Holders	The Seven English-Speaking Countries Eligible for the E-2 Visa
	Cannabis	Others (MDMA)			U.S.A.	Canada	U.K.	Ireland	New Zealand	Australia	South Africa
2005	12	0	12	12,439	4	6	0	0	2	0	0
2006	8	0	8	15,001	4	4	0	0	0	0	0
2007	24	0	24	17,721	8	10	3	0	0	3	0
2008	12	1	13	19,375	6	5	1	1	0	0	0

Statistics for 2005 through November 2008 (Supreme Prosecutors’ Office, Narcotics Division); Statistics for E-2 Visa Holders from 2005 through September 2008, (Korea Immigration Service)

So this is official data on foreign English teachers?

Yes it is. But I would very much welcome the KIS or any other government agency to provide me with better data if they have it.

Under the TBPE drug tests, E-2 English teachers are tested for drugs that would fall in the “Others” category, is that correct?

Yes. In the three years before the introduction of the E-2 visa policy (2005-2007), there were no arrests for any of the drugs English teachers are tested for under the E-2 visa requirements. ((The Policy Memo explains that E-2 visa holders require a “TBPE diagnosis . . . about drug use”. TBPE refers to a tetrabromophenolphtalein ethyl ester indicator test for the presence of ‘hard drugs’ such as heroin, amphetamine, methamphetamine, and MDMA. )) There is no reasonable justification for imposing tests for illegal drugs for which there have been no arrests.

Basically they decided to put a traffic signal at an intersection where there had never been any accidents.

It seems that way. They would probably want to put it up somewhere there has been some action at least; the cannabis offenses, for example. Cannabis, however, is not tested for under the E-2 visa requirements. A “cannabinoid test” ((See “Simplification of E-2 documents,” Korea Immigration Service website, go to Information>News Release. Available at http://www.immigration.go.kr/indeximmeng.html)) was included in the original E-2 visa policy memo, but in March 2008 (three months after their introduction) the Korea Immigration Office announced, “Starting from Mar. 15 2008, the Ministry of Justice decided to leave out the cannabinoid check on a medical record certificate”. ((Ibid.))

But even if the cannabis charges are included in the total amount of drug arrests, 24 drug charges out of 17,721 foreign English teachers in 2007 (the highest levels recorded) would mean that only .013% of foreign English teachers were arrested with drugs in Korea. It is difficult to see how this could account for “dangerous levels” of drug use (as the Ministry of ustice explains) by any type of measure. Assuming, however, that it does amount to “dangerous levels” in the judgment of the Ministry of Justice, then it is difficult to understand why “the Ministry of Justice decided to leave out the cannabinoid check”. ((Ibid.)) The 2007 data on cannabis offenses was known by March 2008 when the decision to discontinue testing for cannabis use was made. It seems if there is any “social issue” (as the Ministry of Justice explains) concerning foreign English teachers in Korea, the issue is cannabis use. With a 99.86% cannabis-free rate, however, perhaps the abandonment of the “cannabinoid check” is understandable.

What about the HIV tests, how are they discriminatory?

There is already a National Human Rights Commission of Korea (“NHRCK”) opinion on deporting foreigners with HIV. The NHRCK has stated that deportations of foreigners with HIV are “highly likely to infringe upon foreigners’ rights to reside in the country as legal aliens and their rights to equality, specifically non-discrimination on grounds of medical history.” ((See “Deportation of an HIV-Infected Foreigner Is Extreme,” March 31, 2008, National Human Rights Commission. Available at http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release. (Emphasis added). Also see “NHRCK Welcomes Seoul Administrative Court’s Decision to Reverse Departure Order Against HIV-Infected Foreigner,” May 6, 2008, National Human Rights Commission. Available at http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release.)) This opinion was submitted to the Seoul Administrative Court during the trial of a foreigner in 2008 who Immigration was trying to deport because he had tested positive for HIV. The judge found in favor of the foreigner and the deportation was stopped. The judge, very wisely, said it is more in Korea’s interest to detect and treat HIV/AIDS than to simply deport.

In May 2008, the United Kingdom, presented its “Advance written questions for States under Review (SuR)” to the UN Human Rights Council during the Universal Periodic Review process. In its questions to the Republic of Korea, the U.K. specifically mentions the “E-2 Teaching Foreign Languages” visa. ((See United Kingdom: Advance Written questions to States under Review (SuR), Session 2: 5-19 May 2008, available at http://www.upr-info.org/IMG/pdf/Advance_Written_Questions_from_UK_S2.pdf (Emphasis added). Also see http://www.upr-info.org/IMG/pdf/QUESTIONS_TO_REP._OF_KOREA_rev.2.pdf)) The U.K. notes that the E-2 visa requires disclosing “HIV status, and there have been reports of foreigners being deported because of their HIV status”, it goes on to ask: “Does the ROK Government consider this to be discrimination and, if so, what measures will it take to address this issue?” ((Ibid.))

I am currently in the process of submitting a formal request for the NHRCK to find the E-2 visa requirements discriminatory. With the E-2 visa policy nearly twenty thousand foreigners have had to undergo HIV testing and are subject to deportation if they test positive. If the deportation of a single individual is discriminatory, then surely the E-2 visa requirements are.

The HIV test does not correspond to any function of being an English teacher. Simply put, teaching students does not transmit the HIV virus; therefore, testing for HIV cannot accomplish the policy memo goal of “protect[ing] children and young students”. The justification for requiring an HIV screening for foreigners only relies on the baseless presumption that foreign English teachers are more likely to engage in sexual misconduct with their students and therefore present a higher risk to Korean society.

Since available data shows that the sexual offenses are committed by the citizen population, there is a lack of reasonable and objective criteria for differentiating between citizen teachers and foreign teachers. In December 2008, the Ministry for Health, Welfare and Family Affairs warned that the age of the average victim of sex crimes was 14, with 32.7% of victims under the age of 13. ((See “Age of Sexual Crime Victims Getting Lower,” The Korea Times, December 22, 2008. Available at http://www.koreatimes.co.kr/www/news/nation/2008/12/117_36541.html)) The Immigration policy memo does not report any crimes committed by foreign teachers against Korean “children and young students”, the perpetrators of sexual offenses against children referred to by the Ministry of Health, Welfare and Family Affairs are not foreign English teachers. Christopher Paul Neil, the only foreigner teacher cited in the policy memo, committed his crimes overseas and no Korean students were involved. Korean teachers, however, have been charged with sexual offenses against their minor students. Just in the past year, there were three high profile cases. In January 2008, Korean teacher stripped a five-year-old student naked and locked her outside of the school in the middle of winter. ((See “어린이집 ‘한겨울 알몸 체벌’ 충격,” Oh My News, January 25, 2008. Available at
http://www.ohmynews.com/NWS_Web/view/at_pg.aspx?CNTN_CD=A0000822284&PAGE_CD=12)) In July 2008, a Korean educational worker was granted probation after being convicted of sexually molesting a disabled student. ((See “장애아 성폭행교사 집유 항의,” the Hankyoreh, July 15, 2008. Available at http://www.hani.co.kr/arti/society/handicapped/298925.html)) In October 2008, a Korean teacher was sentenced to 10 months in prison for repeatedly sexually molesting a student. ((See “초등생 성추행 영어강사 징역10월,” Chusun Ilbo, October 14, 2008. Available at http://news.chosun.com/site/data/html_dir/2008/10/14/2008101400725.html )) Reports of Korean students being sexually abused are common. In December 2008, the NHRCK surveyed student athletes and found that “63.8% of the respondents said that they experienced sexual violence.” ((See “Result of Inquiry into the Human Rights Situation of Student Athletes – Physical Abuse 78.8%, Sexual Abuse 63.8%,” National Human Rights Commission of Korea, December 18, 2008. Available at http://www.humanrights.go.kr/english/index.jsp go to Home > Main Activities > Press Release.)) There is no justification for presuming foreign teachers are more likely to commit sexual offenses against “children and young students” as the policy memo suggests.

You mentioned you wanted the NHRCK to find the E-2 visa policy discriminatory. What can they do about it?

The drug tests and the HIV tests required by the E-2 visa policy are discriminatory. What can the NHRCK do? In their own words, they can “conduct investigations on discriminatory acts of legal bodies, organizations and private individuals, and can give recommendations on the basis of those recommendations.” ((Information Report for the Committee on the Elimination of Racial Discrimination, Submitted by the National Human Rights Commission of Korea available at http://www2.ohchr.org/english/bodies/cerd/docs/ngos/NHRCK.pdf)) The NHRCK does not have the power to prohibit discriminatory acts, but their recommendations and opinions carry a lot of weight. The NHRCK submitted an opinion in the deportation case and the deportation was stopped.

What specifically would you like to see the NHRCK do?

Currently both the bill and regulations I mentioned are pending, so there’s a window that is open for the NHRCK to issue an opinion on them before they become law.

The NHRCK should inform the National Assembly and the Ministry of Government Legislation that the proposed bill (출입국관리법 일부개정법률안 (신학용의원 대표발의), No. 3356, 30.12.2008) and the proposed regulations (출입국관리법 E-2 시행규칙 일부개정령(안) 입법예고, 법무부 공고 제2008-158호, 31.12.2008) would constitute discrimination without reasonable cause if allowed to become law. The NHRCK should also recommend that the proposed bill and regulations require a thorough review under Article 4 of the Basic Act on the Treatment of Foreigners Residing in Korea (재한외국인 처우 기본법, 제정 2007.5.17 법률 제8442호).

How can people support your efforts?

The NHRCK takes complaints by phone or online form, there’s an English website that is well organized. http://www.humanrights.go.kr/english/index.jsp

Since you’ve mentioned the HIV issue, I have a newspaper article that I wanted you to comment on. There was a story that ran in the Chosun and also at the Chosun Sports. They’re still up on the internet. The Chosun news title is “백인 영어강사, 한국 여성에 에이즈 위협” (White English Teacher Threatens Korean Woman With AIDS) ((See “백인 영어강사, 한국 여성에 에이즈 위협” (White English Teacher Threatens Korean Woman With AIDS) available at http://news.chosun.com/site/data/html_dir/2007/05/28/2007052800060.html)) and the Chosun Sports title is “어글리 백인 강사’ 조심하세요” (Beware of the Ugly White English Teacher). ((See “어글리 백인 강사’ 조심하세요” (Beware of the Ugly White English Teacher) available at
http://sports.chosun.com/news/ntype2.htm?ut=1&name=/news/life/200705/20070528/75827008.htm)) This kind of baloney shows up a lot. What can English teachers do about it? Do we have any legal remedies for this kind of race-baiting?

The articles should be retracted immediately and there should be a legal challenge if they aren’t. It’s clearly racially discriminatory; it also discriminates against non-citizens. Moreover, statements like these are very dangerous. You get the idea in heads of the Korean public that “White English Teachers” are out there threatening the Korean populace with AIDS. Then you get a bill (like the proposed amendment to the Immigration Control Act) saying “we require measures to deal with the threat [foreigners] pose to our society’s public order and our people’s health”.

This is just what you don’t want to see happening: xenophobic sentiments springing up into national law.

Directly on point would be the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (CERD), General Recommendation 30 on Discrimination Against Non Citizens. It says that State parties should

Take steps to address xenophobic attitudes and behaviour towards non-citizens, in particular hate speech and racial violence, and to promote a better understanding of the principle of non-discrimination in respect of the situation of non-citizens;

Take resolute action to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race, colour, descent, and national or ethnic origin, members of “non-citizen” population groups, especially by politicians, officials, educators and the media, on the Internet and other electronic communications networks and in society at large. ((See UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation
30 on Discrimination Against Non Citizens, 1 October 2002; page 2, para. 11-12. UNHCR Refworld, available
at: http://www.unhcr.org/refworld/docid/45139e084.html [last visited November 16, 2008].))

Korea is a party to the CERD. Recently (August 2008) the Human Rights Council held a Universal Periodic Review and the issue of educating the media to be more human rights aware came up. When asked about human rights education for the media, Korea pointed to the National Human Rights Commission of Korea (“NHRCK”).

Human rights education for . . . media constitutes one of the major areas of the Commission’s work together with education focused on law enforcement officers . . . The media education covers representation of minorities in the media [and] monitoring the media . . . to instill human rights-friendly media. ((See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review – Republic of Korea, Addendum 13 August 2008. A/HRC/8/40/Add.1, page 6; available at
http://lib.ohchr.org/HRBodies/UPR/Documents/Session2/KR/A_HRC_8_40_Add1_RoK.pdf [accessed 13
January 2009]))

Ok, it mentions law enforcement officers – what about discriminatory comments by the police? We’ve seen a couple statements by the police in the Korean press:

In September 2007, Naver News published an article entitled ‘Korea is a ‘Perverted Paradise’ for Foreign English Teachers’. A representative of the Foreign Affairs Division of the Seoul Police Department was quoted as saying that ‘American and Canadian English teachers think Korea is a land of opportunity [and a] perverted paradise [because] the majority of them find it easy to seduce Korean women and do drugs with them.’ ((See “외국인 영어강사에게 한국은 ‘타락천국”’ (Korea is a ‘Perverted Paradise’ for Foreign English Teachers) available at
http://news.naver.com/hotissue/ranking_read.php?section_id=102&ranking_type=popular_day&office_id=079&article_id=0000185857&date=20070905&seq=1))

2007년 9월, 네이버에 “외국인 영어강사에게 한국은 ‘타락천국’”이라는 제목의 기사가 실렸다. 기사에서 서울지방경찰청 외사과의 한 관계자는 “미국이나 캐나다 국적의 영어강사들은 한국을 ‘기회의 땅’이라 생각한다 … 영어를 배우려는 우리나라 여성들을 쉽게 유혹해 함께 마약을 복용하는 경우가 태반이다.”라고 말했다. ((See “외국인 영어강사에게 한국은 ‘타락천국”’ (Korea is a ‘Perverted Paradise’ for Foreign English Teachers) available at
http://news.naver.com/hotissue/ranking_read.php?section_id=102&ranking_type=popular_day&office_id=079&article_id=0000185857&date=20070905&seq=1))

In January 2008, Dailian News, quoted an Incheon Yeon-su Police Department representative stating, ‘students who have traveled abroad, and club employees who have drug use experience, are purchasing and injecting drugs by contacting foreign English teachers.’ The article continues by explaining ‘sex crimes committed by foreign English teachers, who are high on drugs, are disrupting society, so [the Police] are extending their investigation’. ((See “빌라에서 대마초 재배해 판매” available at
http://www.dailian.co.kr/news/n_view.html?id=97122&sc=naver&kind=menu_code&keys=25))

2008년 1월, 데일리안 뉴스는 인천연수경찰서 관계자의 다음과 같은 발언을 인용하였다. “마약류 경험이 있는 원어민 강사들과 해외 유학파, 클럽 종업원 등이 이들과 접촉해 마약류를 구입 투입하고 있다.” 기사는 계속해서 “마약에 취한 원어민 강사들의 성추행 등 사회적 잡음이 일고 있어 이들을 상대로 원어민 공급책에 대한 수사를 확대하고 있다.“고 설명했다. ((See “빌라에서 대마초 재배해 판매” available at
http://www.dailian.co.kr/news/n_view.html?id=97122&sc=naver&kind=menu_code&keys=25))

What is the legal significance of these types of statements?

The legal thinking is clear in this regard; it’s all about the right to the presumption of innocence. You don’t want to see people or groups tried in the press. That’s why you don’t see interviews with a judge in the midst of a case saying something like, “well, I think the guy is guilty as hell . . .” That would be expressing an opinion on the guilt of the accused. Even worse is a statement like, “well, he’s a so-and-so, and you know what they’re like . . .” That would be casting suspicion on a particular group that isn’t even on trial. The CERD General recommendation 31 (on the prevention of racial discrimination in the administration and functioning of the criminal justice system) explains that non-citizens have “The right to the presumption of innocence”:

This right implies that the police authorities, the judicial authorities and other public authorities must be forbidden to express their opinions publicly concerning the guilt of the accused before the court reaches a decision, much less to cast suspicion in advance on the members of a specific racial or ethnic group. These authorities have an obligation to ensure that the mass media do not disseminate information which might stigmatize certain categories of persons, particularly those belonging to the groups referred to in the last paragraph of the preamble [i.e. “in particular non-citizens”] ((See UN Committee on the Elimination of Racial Discrimination (CERD), Report of the UN Committee on the Elimination of Racial Discrimination: Sixty-sixth Session (21 February-11 March 2005) and Sixty-seventh Session (2-19 August 2005), 3 October 2005; page 106, para. 29. A/60/18. UNHCR Refworld, available at: http://www.unhcr.org/refworld/docid/43f30f8c0.html [accessed 12 January 2009] (Emphasis added).))

The statements by the police should be challenged. The NHRCK, as the foremost human rights organization, should remind the police authorities of their obligations not to “express their opinions publicly [and] cast suspicion in advance on the members of a specific racial or ethnic group”.

What about statements by government officials? There’s the statement you referred to and another that we found in the press:

In November 2007, the Korea Herald quoted “an official at the Ministry of Justice” as saying, “Drug use and other criminal activities carried out by foreign English teachers have been a social issue for some time, and have built up to dangerous levels in recent years. That is why we are implementing changes now.” ((“E-2 visa holders to need medical, criminal checks – starting in December 2007” http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2007/11/07/200711070060.asp (Emphasis added).))

In December 2007, the U.K. Guardian Weekly quoted the Ministry of Justice explaining that the E-2 visa requirements are intended to “prevent native English teachers who disrupt social order with taking drugs, committing sexual harassment and alcohol intoxication.” ((See “Proof of character demanded before entry,” available at http://www.guardian.co.uk/education/2007/dec/14/tefl ))

Again, the CERD’s general recommendation 30 says Korea should “Take resolute action to counter any tendency to target, stigmatize, stereotype or profile . . . members of ‘non-citizen’ population groups, especially by politicians [and] officials . . .” Foreign English teachers definitely qualify as non-citizen population groups.

The next question would be: does Korea consider statements like those you’ve listed to be a tendency to target, stigmatize, stereotype or profile? It seems to me that no one has really put that question to the government. The CERD isn’t some kind of outside law designed to be imposed on Korea. The CERD represents Korea’s own beliefs and principles. Korea has decided to hold itself to these standards. Therefore, the first step is dialog, asking the real questions. For example, if foreign English teacher crime is really at “dangerous levels”, it is permissible to ask: by what measure? Obviously, you are always going to have some criminal offenses within any population groups, and non-citizens are no exception. The overall crime rate of non-citizens is well known and it is substantially lower than the citizen rate, so how low does it need to be in order to prevent statements in the press singling out foreigners as a menace to society? At a certain point, I believe that the government should admit that it might be xenophobia driving the enhanced concern rather than an actual threat.

You’ve mentioned the CERD a couple times, which as you’ve explained covers not only racism but also non-citizen discrimination. What kind of authority does the CERD have in Korea? Does it provide a domestic remedy or only an international remedy?

It provides both. First, the CERD is assuredly Korean law. I’ll tell you what the Korea has told the CERD Committee for years:

The [CERD] Convention was ratified and promulgated by the Government with the consent of the National Assembly [and] [a]s such, it has the same authority of domestic law and does not necessitate additional legislation. ((See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the
Elimination of Racial Discrimination: Addendum to the Fourteenth Periodic Reports of State Parties Due in
2006, Republic of Korea, 18 August 2006, page 4, para. 10, CERD/C/KOR/14. (Emphasis added). UNHCR
Refworld, available at:
http://www.unhcr.org/refworld/docid/45c30ba10.html [accessed 16 November 2008]
Also see UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the
Elimination of Racial Discrimination: State Party Report, Republic of Korea, 17 January 2003, page 4, para.
10, CERD/C/426/Add.2. Online. UNHCR Refworld,
available at: http://www.unhcr.org/refworld/docid/3f24767b4.html [accessed 16 November 2008] ))

So could someone walk into court and cite the CERD?

Yes. It hasn’t happened yet in Korea, however, and the CERD Committee has expressed concern over that fact. In 2007 the CERD Committee made the following observation to Korea:

The Committee also notes that although the [CERD] Convention forms part of the domestic law and is directly applicable in the courts of the State party, there are no court decisions which contain references to or confirm the direct applicability of its provisions . . . The Committee reminds the State party that the absence of complaints may be an indication of the absence of relevant specific legislation, of a lack of awareness of the availability of legal remedies, or of insufficient will on the part of the authorities to prosecute. ((See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Concluding Observations, South Korea, 17 August 2007; page 5, para. 20. CERD/C/KOR/CO/14.UNHCR Refworld, available at: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf [accessed 13 January 2009]))

There was a CERD claim made in a Japanese court. A woman was ejected from a jewelry store because she was foreign. Japan didn’t have any direct laws on the books that provided a remedy, but like Korea they had the CERD. The foreign woman sued the jewelry store for damages, used the CERD, and won her case.

The CERD Committee will also hear cases by individuals against party states (e.g. John Doe v. The Republic of Korea) where domestic remedies have been exhausted and relief has not been granted in accordance with the Convention. So the CERD offers a fairly diverse and powerful set of tools for remedying discrimination (at the national and international level), as it was designed to do.

So what about the dialog process you mentioned? How can foreign English teachers engage the authorities in dialog and how can Korea be reminded of its obligations?

It seems to me that just trying to form an association of English teachers is a good start. And from what you’ve told me, finding the right legal form is a pretty daunting task in itself. I wish I could be of more help in that regard. I have to remind people that my area is international law. I’m not an expert on Korean law. What I know about Korean law generally comes from where it intersects with agreements Korea has made at the international level. A lot of what Korea has done domestically has its origins in international commitments. And I should also remind people that Korea has made some pretty impressive steps in the right direction. A good example is the Basic Act on the Treatment of Foreigners Residing in Korea (the “Basic Act”). (In Korean 재한외국인 처우 기본법 [제정 2007.5.17 법률 제8442호]).

The Basic Act was enacted in May 2007 and went into force in July 2007. The Basic Act looks very promising but it’s not perfect. One of the biggest problems, in my opinion at least, is that you’ve got this big important Act whose sole purpose is to establish a basic level of acceptable treatment for foreigners residing in Korea and nobody knows anything about it. One big reason is that it hasn’t been translated into English yet, much less into any of the other languages of non-citizens in Korea. That’s problematic because the CERD committee specifically asked Korea in August 2007 to “provide an English translation of the [Basic] Act on the Treatment of Foreigners in Korea”. ((See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Concluding Observations, South Korea, 17 August 2007; page 2, para. 11. CERD/C/KOR/CO/14. UNHCR Refworld, available at: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf [accessed 13 January 2009])) Nearly two years, still no translation, and it’s only about ten pages. At the Center for International Human Rights at Kyunghee University, we have recently put together an English translation. I can provide a copy to anyone who would like one.

The Basic Act got a lot of attention at the international level. The Republic of Korea introduced it to the Committee on the Elimination of Racial Discrimination in August 2007, just one month after it had gone into effect, and explained that the Basic Act would contribute to “social integration through the promotion of mutual understanding and respect between foreigners and Korean nationals.” ((See “Committee on Elimination of Racial Discrimination Considers Report of the Republic of Korea,” August 10, 2007 available at http://www.unhchr.ch/huricane/huricane.nsf/view01/B77E3956B335DD33C1257333004FA7CA?opendocument)) In February 2008, the Republic of Korea brought the Basic Act to the attention of the Human Rights Committee explaining it “sets forth obligations of the central and local governments . . . to prevent discrimination against and protect the human rights of foreigners”. ((See UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40 of the Covenant: International Covenant on Civil and Political Rights: concluding observations of the Human Rights Committee: Republic of Korea: addendum: comments by the Government of the Republic of Korea on the Concluding Observations of the Human Rights Committee, 29 February 2008; page 2, para. 5. (Emphasis added). CCPR/C/KOR/CO/3/Add.1. UNHCR Refworld, available at: http://www.unhcr.org/refworld/docid/47fdfd8c2.html [accessed 13 January 2009])) In May 2008, during the Universal Periodic Review before the Human Rights Council, the Republic of Korea again referred to the Basic Act, also mentioning “the Inter-Ministerial Committee on Policies Regarding Foreigners” that was formed under the Act. ((See UN Human Rights Council, Report of the Working Group on the Universal Periodic Review – Republic of Korea, 29 May 2008; page 4, para. 6. A/HRC/8/40; A/HRC/WG.6/2/L.6. UNHCR Refworld, available at: http://www.unhcr.org/refworld/docid/485b96303.html [accessed 13 January 2009].)) In September 2008, in response to the “Questionnaire on the Follow-up Measures of the Durban World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance”, the Republic of Korea showcased the Basic Act as an example of “good practices achieved in the fight against racism, racial discrimination, xenophobia and related intolerance”. ((See “Replies to Questionnaire on the Follow-up Measures of the Durban World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance,” available at http://www2.ohchr.org/english/issues/racism/DurbanReview/docs/session1/korea.doc [accessed 10 December 2008] Also see DURBAN REVIEW CONFERENCE Preparatory Committee Intersessional open-ended intergovernmental working group to follow up the work of the Preparatory Committee, 1 September 2008; page 21. A/CONF.211/PC/WG.1/CRP.1Available at http://www2.ohchr.org/english/issues/racism/DurbanReview/docs/session2/WG.1_CRP.1.doc )) The Republic of Korea further explained that:

Comprehensive and systematic policies for foreigners who reside in the ROK [have been created] through the enactment of the Basic Act of the Treatment of Foreigners in Korea and [by] establishing periodic five-year ‘Basic Plans for Policies Regarding Foreigners’ ((Ibid.))

So here’s this Act that’s being toasted at the international level as an example of a good practice in the fight against xenophobia and then here comes this bill that says “Nowadays, the number of foreigners working in Korea is increasing, but a good many [상당수] have previous convictions for drug and sexual crimes or carry infectious diseases.”? Wouldn’t the Basic Act have something to say about that?

In my opinion, it should. Article 4 of the Basic Act says, “the government must fulfill the purpose of this act when establishing or amending the other acts which are related to treatment of foreigners residing in Korea.” To my mind this at least calls for a thorough review of any proposed legislation for consistency with the purpose of the Basic Act. Article 1 says the purpose is to “further an agreeable and respectful social environment between Koreans and foreigners residing in Korea by prescribing basic principles for their treatment”. Saying a good many foreigners coming to work in Korea are ex-cons or infected with contagious diseases is hardly furthering a respectful social environment.

Ok, yeah that just makes me mad. But here’s the thing, and ATEK is facing this as a concern, if you go out there saying “this isn’t right” and raising questions, can’t Immigration claim you are engaging in political activity and therefore in violation of your status of stay under your visa?

Well, I won’t speculate on what the KIS might say, but it certainly wouldn’t be in their interest to react that way. Moreover, invoking rights that were specifically created for you at law is hardly being political. Just as asking for your paycheck at the end of the month isn’t a political act. These are rights accorded on the Labor Standards Act, for example. Asking for an accounting of your Article 10 rights under the Basic Act – which doesn’t have much bite, but at least requires the government “to make efforts to prevent discrimination against foreigners residing in Korea” – wouldn’t be a political act either.

Okay, you bring up the Labor Standards Act. What kind of rights do non-citizens have in that regard?

All of them. The Republic of Korea has been very clear on this. The ROK explained to the Committee on the Elimination of Racial Discrimination in 2006, “the legislation of the Act on Foreign Workers Employment on August 16 2003 applied all labour-related laws, including Labour Standard Act, to foreign workers and native workers equally.” ((See UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Addendum to the Fourteenth Periodic Reports of State Parties Due in 2006, Republic of Korea, 18 August 2006; page 12, para. 61. CERD/C/KOR/14. UNHCR Refworld, available at: http://www.unhcr.org/refworld/docid/45c30ba10.html [accessed 13 January 2009]))

Alright, so how does an association like ATEK go about engaging the government in dialog? Which you say wouldn’t be a political act. Be advised that I’m going to call you up if I get hauled in for questioning on this!

My big picture take is that the ROK knows it needs to eventually become a multicultural society. If you read through the Basic Plan for Policies Regarding Foreigners you even catch a desperate note in their tone. They lament the declining birth rates (calling it “the lowest birth rate in the world”!) and the aging Korean population; they say that Korea needs to attract more foreigners “to become permanent members of society”. ((See 외국인정책기본계획 (2008-2012), Section 1-1.)) In order to accomplish this goal, the Basic Plan goes on to explain, it is necessary to create an environment which reflects multicultural values and respects non-citizens as equal members of society. ((See generally 외국인정책기본계획 (2008-2012).))

So again my big picture take on this is that it’s clearly in everybody’s best interest to sit down at the table and get to accomplishing what we all share as a common vision. No one is fomenting revolution here. Your group, for example, isn’t interested in labor strikes and shutting down English classes are you?

Not at all. ATEK wants to provide information and support to English teachers, and assist English teachers in accessing services. We think that this will reduce turnover (as happy comfortable workers are more likely to stay in their jobs), which will increase competition, meaning that higher quality applicants will be available to employers. We think we can be a big help to the Korean government as well, getting information out to teachers and providing the government with information about teachers it doesn’t have. For example, there are no statistics on how many teachers are satisfied with their jobs, how many report having problems accessing government agencies like the National Pension Scheme and the Tax Service, etc. We hope to be able to let the government know where English teachers need more support.

Alright, this is the type of ‘working together’ approach reflected in the Basic Act. The Basic Act provides mechanisms for dialog with the foreign community in Korea. Article 11 calls for educational guidance from the government for learning how to operate in Korea. Article 20 calls for support and guidance with civil procedures and affairs, Article 21 calls cooperation with the private sector, non-profit associations and even funding.

The time to move on defining what these Articles and their mechanisms will come to mean is now. So far the non-citizen community hasn’t had much to say. The Republic of Korea has taken that to mean that everyone is satisfied with the status quo.

ATEK would like to thank Professor Benjamin Wagner for his research and effort, and I personally would like to thank you for agreeing to this interview.