The recent acceptance by the U.N. human rights commission of a claim against South Korea for its mandatory HIV testing of native speaking English teachers is focusing international attention once again on the AIDS policy here. 

This attention comes as a consequence of current myopic policies that contrast starkly with the quick and rational reaction of the government in 1985 when the first cases of HIV infections were detected in prostitutes patronized by U.S. soldiers.

At that time the government mandated tests for commercial sex workers, prison inmates, seafarers, and other high risk groups and closely monitored individuals who had tested positive.

A national law was enacted that provided the government with the power to restrict individuals with positive tests from certain service industries. Finally infected individuals were fully covered under government health care.

That approach kept the rate of new infections in South Korea to a minimum, however by 1993 the primary source of new infections in South Korea was Korean to Korean and it quickly became clear that testing large segments of the population was cost prohibitive.

By the late 1990s close to ten percent of the population had been tested but at a cost of over sixty percent of the entire AIDS budget. Thus the nation adopted a primarily voluntary testing regime which was determined to be more cost effective at detecting new infections.

Despite the change in epidemiology for new infections the country continued its discriminatory policy of focusing on HIV positive foreigners. Thus in 2007 when a Chinese citizen of Korean ethnic descent tested positive he was immediately detained in a foreign internment camp and a departure order was promptly issued. When this individual challenged his deportation proceedings both the Seoul Administrative Court and the Seoul High Court found the deportation proceedings to violate his human rights.

Notably the National Human Rights Commission of Korea issued a supporting opinion stating that the deportation of a foreigner residing in South Korea solely due to a positive HIV status was extreme and constituted an irreversible violation of basic human rights.

The Commission also noted that the mere presence of an HIV positive person in South Korea was not a grave risk to public health. The Seoul High Court affirmed the Administrative Court’s vacation of the deportation order and stated that early detection and treatment are the most effective means to prevent the spread of HIV not the deportation of foreigners.

However within six months of this decision the government amended the Ministry of Justice’s visa requirements for native speaking English teachers by imposing mandatory HIV and drug tests.

In defending this stance the Ministry of Justice stated the requirement was not due to concern that native speaking English teachers would transmit HIV to students in the classroom but merely a ploy to placate parents who had been fed a steady diet of xenophobic misinformation from the major South Korean news networks. This new requirement quickly led to conscientious objections by a number of highly qualified English teachers who were subsequently forced to leave the country.

Some of these individuals filed legal cases against the government but the South Korean courts, despite having vigorously defended the human rights of a foreigner of ethnic Korean descent, refused to extend this protection to foreigners of non-ethnic Korean descent.

One Supreme Court justice opined, in clear contradiction to existing precedent and contrary to the stated position of the Korean government, that foreigners are not accorded protections of their fundamental human rights under the Korean constitution. This disappointing result is not surprising considering the continual bias against non-ethnic Koreans by the South Korean judiciary.

While usually that is the end of the matter for a foreigner victimized by the bias of the South Korean judiciary, in this case a number of international treaties to which South Korea has acceded are applicable.

Thus the U.N. human rights commission is now involved. The outcome of this claim before the commission, a neutral decision maker, will undoubtedly be negative for South Korea. Thus the government is once again faced with international opprobrium due to the biased decision making of the Korean judiciary and a new approach must be formulated.

This new approach must be equitable in its treatment of all individuals if it is to meet international human right norms. As a first step the general population needs to be educated about the HIV epidemic.

Recent surveys by the Korean CDC show that over 50 percent of the population still believes kissing can transmit the virus and almost eighty percent still believe that mosquitoes can transmit the virus. Of greater concern is the erroneous belief that the virus is primarily a “foreign” disease which leads to unsafe sex practices in domestic relations.

For example, in surveys over seventy percent of married men in Korea admit to frequenting prostitutes and a majority of those men state they do not use condoms putting both themselves and their spouses at risk.

Another major concern is the increase in late diagnoses due to the fear and disgust with which many people in Korea still view the disease. Education on the effectiveness of early intervention and the possibility of an HIV infected individual living a normal life-span is necessary.

As a guide for a visa system that meets international human right standards South Korea should look to the Australian system where mandatory HIV testing is only for permanent visa applicants and for temporary visa applicants who intend to work as, or study for, a doctor, a nurse, a dentist or a paramedic; fields where exposure to bodily fluids occurs and a real risk of transmission exists.

After almost two decades South Korea has maintained a low HIV infection rate, however the initial reasoned response has mutated into a policy based on racism and misinformation.

This change has resulted in a growing international perception of South Koreans as ignorant and xenophobic. Implementing a new AIDS policy based on logic and international human rights norms is a necessary step to reform this image, to prevent the further spread of HIV and to treat in a humane manner HIV positive individuals already residing in South Korea.

By Daniel Fiedler

Daniel Fiedler is an associate professor of law at Wonkwang University and holds an honorary position as an international legal advisor for North Jeolla Province. ― Ed.