The U.N. Committee on Eliminating Racial Discrimination has ruled that HIV testing of teachers on E-2 visas is discrimination.

In an opinion released Tuesday, the committee said that “The mandatory testing policy limited to foreign English teachers who are not ethnically Koreans, does not appear to be justified on public health grounds or any other ground, and is a breach of the right to work without distinction as to race, color, national or ethnic origin.”

It also urged Korea to take action to prevent future occurrences of such discrimination, review policies and regulations on the employment of foreigners at the local and national level and abolish those that are discriminatory.

The case considered relates to Ulsan Metropolitan Office of Education’s 2009 cancellation of a contract extension offer to a native-speaking English teacher who refused to take a repeat HIV test.

HIV and drug tests were introduced in 2007 for E-2 visa holders after sustained pressure from citizens’ groups. About 20,000 teachers ― mostly English instructors ― hold E-2 visas at any one time, meaning tens ― perhaps hundreds ― of thousands, of people have been subjected to the tests.

Critics of the policy have argued that the policy unfairly associates foreign teachers with child abuse and sex crimes, and has no practical value. Among them is U.N. Secretary-General Ban Ki-moon, who urged Seoul to stop the policy during the G20 economic summit in Seoul in 2010.

The case was taken to the Korean Commercial Arbitration Board and the National Human Rights Commission of Korea. However, the KCAB dismissed the case and the NHRCK refused to investigate.

While not all signatories to the International Convention on the Eradication of Racial Discrimination allow it, Korea allows petitions to be filed with the commission if the complainant has exhausted such domestic options.

It is the first time that the petition system linked to the International Convention on Eliminating Racial Discrimination has been used in Korea.

The committee urged Korea to pay compensation to the teacher, including for lost wages from the contract cancellation, and said the state bodies’ failure to investigate was also a breach of the complainant’s rights.

The Justice Ministry told the Korea Herald that they had not not yet received official notification of the decision, and could not give a statement on how it would respond until it had discussed the issue with other relevant ministries, including the Education Ministry and the Ministry of Foreign Affairs.

“This is a huge victory, but it is just the beginning. We’ll be relentless in bringing cases until a comprehensive antidiscrimination law passes in Korea,” said Ben Wagner, counsel for the petitioner and a member of International Advocacy, an informal group that provides free legal representation for people experiencing discrimination in Korea.

“We have several cases in motion now including a case before the U.N. Human Rights Committee. And we offer free representation now for people experiencing discrimination in Korea: multiethnic Koreans, Koreans living with HIV, LGBT people, foreigners, everyone. So I expect these international cases to pile up until Korean courts and politicians take action to end discrimination.”

By Paul Kerry (paulkerry@heraldcorp.com)