By Ken Oh
At the opening ceremony for the 2012 International AIDS Conference in Washington DC, UNAIDS chief Michel Sidibe
announced that the South Korea had just lifted its travel restrictions on people living with HIV. The announcement met with a wave of applause. Hours before the speech, Kim Bong-hyun, Deputy Minister for Multilateral and Global Affairs, had announced that the South Korea had lifted
travel restrictions on HIV-positive travelers to the country. There were only two problems with this momentous announcement: first, South Korea had made more or less the same announcement in 2010; and second, it is not clear that South Korea has made any of the needed legal reforms since then. Numerous discriminatory restrictions on visitors living with HIV/AIDS remain in place.
In the months leading up to the 2010 International AIDS Conference, South Korea made a similar announcement. Michel Sidibe hailed it then as “a victory for human rights on two sides of the globe.” At that time, Professor Benjamin Wagner of Kyunghee University Law School noted that South Korea had actually made no law or policy changes. While the Immigration Control Act reserves the government’s right to prohibit the entry of persons carrying any “epidemic disease”, in practice South Korea has never tested tourists for HIV or required them to submit HIV test results. Even today, while the Immigration Control Act does not specifically reference HIV, the Korean government could still use the “epidemic disease” provision to prohibit visitors with HIV at any time in the future.
Meanwhile, as I pointed out back in 2010, in order to make real progress, the Korean government needs to address the discriminatory AIDS Prevention Act. Article 8(3) of the Act requires ‘long-term sojourners’, specifically those under the E-6 employment visa (e.g., entertainers and professional athletes) to HIV-negative confirmation statements along with their visa applications. If these travelers are found to be HIV-positive, the government can invoke Article 46(1) of the Immigration Control Act to deport them, especially if the government finds that they are having sexual relations with Koreans.
In addition, foreign-language instructors and others visiting South Korea under an E-2 visa are also still required to undergo an HIV test within 90 days of entry. This requirement has recently been challenged before the U.N. International Committee on the Elimination of Racial Discrimination. That challenge is being brought by Lisa Griffin, a New Zealand woman who taught English in South Korea and who alleges that the mandatory HIV tests “stigmatize foreigners as people who are a high risk of AIDS, which leads to local hostility against them.”
These discriminatory regulations reflect broader societal attitudes toward HIV/AIDS in South Korea which have combined with negative attitudes towards foreigners. Vince Crisostomo, a prominent activist who helped to organize a regional HIV/AIDS conference in Busan, South Korea in 2011, noted that
attitudes towards foreigners remain “very discriminatory”. Discussion of HIV/AIDS also remains largely taboo in the country and many Koreans think of HIV/AIDS as a “foreigner disease”. These notions have lingered in the country for decades, since the first documented cases of HIV were identified in 1985, and they permeate the legal and political infrastructure.
To be sure, it was progress in 2007, when the Seoul High Court ruled that
deportation proceedings brought against an HIV positive Chinese citizen of Korean ethnic descent were a violation of his human rights. However, just six months after that decision, the government implemented the aforementioned HIV test requirements for native-speaking English teachers. Fortunately, legal challenges to those requirements by foreign English teachers were successful.
UNAIDS, international donors, and the regional network of people living with HIVAIDS (APN+), should consider Deputy Minister Kim’s recent announcement a public commitment to at long last improve the legal environment for South Korea’s AIDS response. In a
recent op-ed in The Korea Herald, law professor Daniel Fiedler suggests that South Korea adopt a visa system that meets international human rights standards, similar to the one adopted by its Pacific neighbor, Australia. Under such a program, mandatory HIV testing would only be mandated for visa applicants who intend to work in or study medical fields where exposure to bodily fluids occurs and presents a real risk of transmission.
Without these and other concrete steps towards legal reform, these biennial statements by the South Korean government ring hollow.
Ken Oh is a lawyer and former editor of Asia Catalyst’s Chinese-language website, Asia Report.
