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Infected, Detected, Accepted?
Towards the elimination of HIV-related travel restrictions in Korea
Michael Solis (msolis)     Print Article 
Published 2009-10-12 09:52 (KST)   
For background information on the Korean law surrounding HIV testing for foreigners, see the author's 2008 piece. Part two of this series will be available from 19 October 2009.  <Editor's Note>
To this day, Korea remains one of seven countries that uphold the most rigid forms of HIV-related travel restrictions, a list that includes places like the United Arab Emirates, Saudi Arabia, Iraq, Qatar, the United States and China. Both the US and China have declared their commitment to remove travel restrictions for people living with HIV/AIDS.

UNAIDS has labeled Korea as one of at least seven countries (Belarus, Cuba, Malaysia, the Republic of Moldova, Mongolia, and the Turks and Caicos Islands) that require foreigners to take HIV tests annually or whenever work or residence permits need to get extended.

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According to the Korea Center for Disease and Prevention, 521 of 647 foreigners diagnosed with HIV have been deported as of 2008. Deportations continue despite findings by international organizations like Human Rights Watch and UNAIDS that conclude that the forced testing and deportation of foreigners based on HIV-positive status are ineffective and counterproductive.

With over 100 countries around the world having no HIV-related travel restrictions and more countries understanding the importance of adopting effective prevention measures, the question remains as to why Korea has not changed its policies.

Foreign-inspired movement against restrictions

The tides may be changing in Korea, however, as a group of public interest minded foreigners has helped initiate a process that may result in the repeal of HIV-related travel restrictions.

Approximately 50 foreign people have filed complaints to the National Human Rights Commission of Korea (NHRCK) regarding forced HIV testing, all of which have been transferred to the NHRCK's Human Rights Policy Division.

According to Kyung Hee University Law Professor Ben Wagner, "The transfer is good news because the NHRCK has decided that mandatory health checks and HIV tests present a 'grave' issue that goes beyond granting individual remedies and instead requires an examination of the nation's human rights policy and cultural change."

Last May Attorney Suh-yeon Chang, with the public interest law firm Gonggam, filed a case with the Constitutional Court on behalf of foreign instructors like Andrea Vandom who hold E-2 visas.

"That the Constitutional Court has accepted the Vandom case is mind blowing considering that pretty much everybody thought it would be rejected," Wagner writes. "The Court has sent a very positive message to the foreign community by showing its willingness to address issues of foreigners' rights."

According to Vandom, "I felt discriminated against and violated that, just because I am a foreigner, that I am considered a risk. There really is no evidence that foreigners are more likely to have AIDS or do drugs."

The date for the initial trial phase of the Constitutional Court's ruling has not yet been reported, though on July 31 the Court assigned the case with an official number.

In an email the Deputy Director of the NHRCK's Human Rights Policy Division Lee Seong-Tae said that it is possible for the Human Rights Commission to submit an official opinion to the Constitutional Court. Such an action would greatly strengthen the case to repeal the travel restrictions. Lee estimates the trial could take as long as two years.

If the Constitutional Court rules that foreign instructors' mandatory submission of proof of HIV status is unconstitutional, then the Korean Immigration Service must remove the requirement.

Korea's International Obligations

Not all Korean government officials are want to repeal HIV-related travel restrictions. In reference to Korea's testing policies, Korean Ministry of Justice official Lee Bok-nam told the Korea Times that, "[f]oreigners do not have the right to demand that a country guarantees equal rights with the nationals of the country regarding entry into the country."

What Lee overlooks are the binding international human rights treaties that Korea has signed. Korea has ratified the International Covenant on Civil and Political Rights, which binds it to guarantee the right to equal protection of the law to all people, regardless of race, ethnicity, nationality, sex, or any other status. Korea has also ratified the International Covenant on Economic, Social and Cultural Rights, with guarantees the right to health, as well as the International Convention on the Elimination of All Forms of Racial Discrimination.

In 2006 Korea renewed its commitment to the 2001 Declaration of Commitment on HIV/AIDS, which seeks to eliminate all forms of discrimination against people living with HIV/AIDS by ensuring their privacy and access to health services, prevention, support, treatment, and legal protection.

Furthermore, United Nations Secretary General Ban Ki-Moon, arguably Korea's most powerful leader, has called for an end to HIV-related travel restrictions.

Combating Stigmatization

Despite Korea's attempts to curb HIV-levels through its immigration policies, the number of people living with HIV/AIDS in Korea is rising each year. According to UNAIDS, in 2007 approximately 13,000 people were living with HIV/AIDS in Korea. The statistic may underestimate the reality of the situation given that stigmatization deters many Koreans from getting tested and that it is currently impossible to determine how many foreigners are living with HIV/AIDS.

Combating stigmatization has been difficult, especially since presumably small sectors of Korean society have been operating anti-foreigner movements that associate HIV/AIDS with foreignness. The Anti-English Spectrum, a leading organization behind this movement, has promoted racist propaganda that seeks to stigmatize foreigners and frighten Korean women from having intimate relationships with members of different races and nationalities.

Certain hate groups have also criticized foreigners who get tested for HIV, even in light of recommendations by the Korean Center for Disease Control and Prevention, the World Health Organization, and doctors across the globe who promote voluntary HIV testing and counseling as the best prevention and elimination measures.

According to Wagner, "The group's efforts have reinforced the dangerous and ignorant message that being tested for AIDS is 'suspicious.' Foreign teachers shouldn't have been stigmatized for being tested, but held up as examples of correct behavior and prudent action for responsible Koreans and non-Koreans alike."

Unfazed by the antiquated and baseless opinions of such groups, foreigners like Wagner and Vandom will continue working with Korean actors to pressure the Constitutional Court until it makes its final decision. Their hope is that Korea will adopt internationally accepted and progressive reforms that will result in a safer, healthier, and more aware Korea.

In the second part of this series, I will present the stories of two women who have chosen not to participate in the mandatory HIV examinations, resulting not only in their job loss but also a Constitutional Court case that may very well change Korea's testing and immigration policies.
The author covered this issue for an American audience at The Huffington Post.
©2009 OhmyNews
Other articles by reporter Michael Solis

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