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Scrutinizing Rules for Foreigners in Korea: How Much Discrimination is Reasonable?

Benjamin K. Wagner∗

Abstract

The International Convention on the Elimination of All Forms of Racial Discrimination

(“ICERD”) promises to provide effective remedies against xenophobia and discrimination on the basis of foreign nationality in Korea. The treaty has been under-utilized and its legal status and proper role is largely unknown or misunderstood. Few appreciate the broad definition of “racial discrimination” under the ICERD and the implications for non-citizens. Even fewer are aware of the special relationship Korea maintains with the Committee on the Elimination of Racial Discrimination (“CERD”) because of its recognition of the competence of the CERD to receive complaints and make recommendations under the optional Article 14 procedure.

This article examines several real life contemporary scenarios under the ICERD analysis and contrasts results with other jurisdictions. In doing so this article hopes to encourage further study and utilization of the recommendations, observations and jurisprudence of the Committee on the Elimination of Racial Discrimination in deciding what equality will mean for the increasing number of foreigners who live in Korea.

Keywords: International Convention on the Elimination of All Forms of Racial Discrimination, ICERD, Non-discrimination, Xenophobia, Foreigners, Citizenship, Noncitizens. ∗ The author is an Assistant Professor of Law, Kyung Hee University School of Law, Korea (email: khu.lawschool@gmail.com). He received a J.D. in 2004 from the University of Hawai'i, William S. Richardson School of Law. He is a U.S. attorney and member of the Hawai'i and Minnesota state bar associations.

Contents I. Introduction

1. The scenarios 2. Recognizing the multi-ethnic character of contemporary Korean society

II. Korea’s Special Relationship with the CERD 1. International law as an interpretive aid and gap filler 2. The status of the ICERD as domestic law 3. The article 14 individual complaint procedure

III. Heightened Scrutiny for Distinctions Based on Citizenship 1. Herman v. Asahi Bank 2. Habassi v. Denmark 3. Quarantines for foreigners 4. Rights properly reserved for citizens 5. Foreign fathers to Korean children

IV. Conclusion

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I. Introduction

1. The scenarios

A group of old women shuffle up to the subway ticket window to collect a

free ticket provided by the Korean government for people over 65. But as Ms.

Sonia Strawn reaches for one she is denied. Even though she has been a resident of

Korea for “more than 40 years” – as a “foreigner” she is ineligible.1 As Ms. Strawn

explains it:

I pay taxes here, shop here, had babies here, work here and yet ― am soundly scolded by Korean subway ticket booth workers when I try to pick up a small paper ticket to the subway just as the Korean grandma ahead of me does. After all these years in Korea, do you know how that makes me feel?2

Konrad Fischer, another elderly foreign resident of Korea, makes a similar point:

If you are Korean and over 65, you get a discount, even free rides on the subway; but not foreigners coming to Korea or living in Korea. In other countries ― I know by experience ― like Hong Kong, New Zealand, Australia, Malaysia, Europe and Japan, when I go there, I’m always asked whether or not I’m over 65 years old. In this case, I get a discount on trains, buses and at establishments like museums. Foreigners are treated the same way as native people. But not here in Korea.3

Are the incidents these seniors describe cases of discrimination or mere inconvenience?

Consider another scenario: A young newlywed couple dreaming of a

downtown apartment in Seoul approaches a bank for a loan; yet, despite the

husband’s well paying job and permanent resident status, his application is denied

because he is a “foreigner.” As Michael Stevens, a foreign resident married to a

Korean national explains it, “foreign husbands [in Korea] are usually unable to get

adequate bank loans in order to purchase homes or even a car in this country

[because] . . . in the [Korean] banking system . . . foreigners are looked upon as 1 Sonia Reid Strawn, Editorial, How to Make Foreigners Feel Welcome Here, The Korea Times, Mar. 18, 2009. 2 Id. 3 Konrad Fischer, Editorial, Friendly Korea, The Korea Times, Mar. 12, 2009 (emphasis added).

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being a flight risk, as if we were criminals looking to steal the bank’s money.”4 Mr.

Stevens goes on to explain the troubling situation for foreign husbands in Korea as

he sees it:

For most it is also nearly impossible to receive a Korean credit card; even though many of us have a good credit rating in our home country and make the same or even more money than the average Korean husband. Korea is very unfair to foreign men that have to support and raise a Korean family in this country. Most of us want to be good husbands and fathers, yet the government does nothing to help us provide adequate credit and housing for our families.5

Should the Korean government be doing more to ensure that foreign husbands

and fathers like Mr. Stevens have equal access to consumer credit and housing loans?

Or should the rules for foreigners that some financial institutions have in place be

considered reasonable safeguards against those who may flee the jurisdiction?

Another foreign husband, the birth-father of a baby Korean girl, has also

taken issue with the government’s treatment of international families living in Korea.

Upon registering the birth of his newborn with the government office, Mike Yates

was shocked to discover that his name did not appear alongside the names of his

Korean wife and child on the nation’s family register. Enraged, Mr. Yates filed a

petition with the government asking for the situation to be remedied. It reads in part:

Our daughter holds both British and Korean citizenship, and her birth has been registered in both countries. In the UK, her birth certificate shows the name of both parents, regardless of the fact that my wife has no right to residency in the UK. In Korea, this is not the case. The dong office [has] informed my wife that I may not be included as a parent to our daughter, despite the fact that my wife and I are legally married under Korean law. The reason given is that I am a foreigner . . . If I was Korean, my rights as a father would be secure.6

The official response from the Ministry of Public Administration and Security

explained: 4 Michael Stevens, Editorial, Gender Equality for Foreign Husbands, The Korea Times, Jun. 30, 2008. 5 Id. 6 Ranting Englishman, http://yonguksaram.com/im-back-and-im-pissed.html (May 29, 2009) (emphasis added).

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Clause 1, Article 6, the Resident registration law implies foreigners are not a member of registration in Korea. The Resident registration system was made to record and manage the residence record of Korean, not for foreigners.7

Has the government provided a reasonable explanation for the differential treatment or

is this foreign father justified in feeling he has been discriminated against?

A final real life scenario takes place in the employment context: A school

holds a faculty meeting to discuss parental concerns over the potential spread of the

H1N1 “swine flu” virus to the student body. Although no cases of the disease have

been discovered, school officials announce that special “safety measures to ensure and

protect our employees and students from swine flu” 8 are necessary. It is therefore

decided that all foreign teachers newly arriving from overseas, regardless of their

health status, “must stay at home for two weeks.” 9 It is further decided that, for

7 Id. (emphasis added). 8 Brian in Jeollanam-do, http://briandeutsch.blogspot.com/2009/05/avalon-hagwon-franchise-to-take-away.html (May 29, 2009). A copy of the original notice is also on file with the author. 9 Id. In addition to the scenario described above, which occurred at a private language academy, the Seoul Metropolitan Office of Education (“SMOE”) also instituted a special quarantine for foreign teachers. On September 14, 2009, the SMOE made the following announcement: “Teachers, There will be some Holidays coming up like Chuseok and Korean New Years. If you are planning to go outside of Korea. You will be Quarantined when you return. If you are quarantined, you will be using your sick days. (You have 15 days sick leave) Schools may ask you to not go outside of Korea because of the Quarantine week.” On file with the author and available at http://etis.sen.go.kr/ Go to ETIS Board>Announcements>Quarantine Information. Designating noncitizens as a disease threat by virtue of their foreign nationality alone is a fairly well institutionalized practice in Korea. The Blue House, for example, (the executive office and official residence of the President of the Republic of Korea) announced that: “Due to the spread of the H1N1 Flu, starting September 1 [2009], anyone under the age of 18 (including infants and preschool children) and foreigners will be temporarily excluded from tours. As the alert levels of the H1N1 Flu have elevated to ‘serious’ levels, we request anybody who displays one or more of the following symptoms (high fever, runny nose, stuffed nose, sore throat, coughing, etc.) to refrain from participating in tours, and in order to prevent the spread of infections we request people to wear masks during tours. As this measure is to ensure the safety of tour participants and to prevent the spread of the H1N1 Flu, we request your understanding.” (In Korean: “신종플루 확산에 따라 9월 1일부터 만 18세 이하 청소년 (영유아 포함) 및 외국인의 관람을 일시 중단하게 되었습니

다. 최근 신종플루 위기 단계가 "심각"으로 격상함에 따라 고열, 콧물, 코막힘, 인후통, 기침 등의 증상 중 한 개 이상의

증상이 있는 경우에는 관람을 자제해 주시기 바라며 감염 확산 예방을 위해 관람시 마스크를 착용해 주시기 바랍니다. 금

번 조치는 관람객의 안전 및 신종플루 감염 확산을 예방하기 위한 조치이오니 양해하여 주시기 바랍니다.”). On file with the author and available at http://www.president.go.kr/kr/cheongwadae/viewing/guidance.php#none Interestingly, the English language website gives no indication that tours for Koreans are available during the ban on foreign visitors, but instead explains that “CheongWaDae Tour is temporarily closed Following the World Health Organization’s decision to raise alert level about the spread of Swine Flu (also known as H1N1), CheongWaDae Tour is temporarily closed South Korea has been relatively safe from the pandemic but infections are worried to accelerate as people getting together like group tour. Sorry for this inconvenience” (Incorrect punctuation has been preserved). On file with the author and available at http://english.president.go.kr/tours/cwd_tours/cwd_tours.php The policy of excluding foreigners from Blue House tours was still in effect when this article went to publication.

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foreign employees currently residing in Korea, “no overseas vacation and business

travel” will be permitted and to enforce this requirement “foreign teachers and staff

members must submit their passport to their director until further notice.”10

Considering the foreign source of the contagion and legitimate concerns over

the spread of the virus to the Korean population, can it be argued that the special

rules for foreigners set up by the school are reasonable precautionary measures, or

has impermissible discrimination occurred?

2. Recognizing the multi-ethnic character of contemporary Korean society

In discussing the “reasonableness test” used by courts to determine whether or

not discrimination has occurred under the Equal Protection Clause of the Korean

Constitution, Professor Ahn Kyong-Whan notes that one of the reasons for its

relatively low level of scrutiny is that “Korea has historically been an extremely

mono-cultural state [where] [n]o race or place of origin issue has ever bothered the

Korean judiciary.”11 Those days, it seems, are gone. Plaintiffs have emerged from

the real life scenarios described above and are already troubling the Korean judiciary

with thorny issues of race and nationality; and, if government and media reports12 are

correct and Korea is truly evolving from a mono-cultural state to a multi-cultural one,

then perhaps it is time to ask whether the judiciary’s standard of review should

similarly evolve to include these new members of society.

This article considers several contemporary noncitizens issues and argues that

courts should take account of Korea’s international obligations under the International

10 Id. 11 Ahn Kyong-Whan, The Influence of Constitutionalism on South Korea, 22 S. Ill. U. L.J. 71, 102 (1997). 12 See e.g. Justice Minister Kim Kyung-han, Korea Breaking Down Walls of Discrimination, The Korea Times, Feb. 24, 2009 (“We will create an open society for all. This is one of the 100 policy goals of the Lee Myung-bak government . . . to create a mature multicultural society that respects the human rights of foreigners.”) But c.f. Professor Han Kyung-Koo, The Archeology of the Ethnically Homogeneous Nation-State and Multiculturalism in Korea, Vol. 47 KOREA JOURNAL 8,9 (2007) (discussing “[t]he flimsy basis of this kind of official multiculturalism[.] ”).

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Convention on the Elimination of All Forms of Racial Discrimination13 (“ICERD” or

“Convention”) in articulating the non-discrimination standard for foreigners residing in

Korea. This article further argues that, considering the special relationship the

Republic of Korea has established with the Committee on the Elimination of Racial

Discrimination (“CERD” or “Committee”) and the collaborative effort already

underway “to set standards for determining whether an act of discrimination has a

‘reasonable cause’ or not,” 14 particular consideration should be given to the

observations, recommendations and decisions of the Committee. While it is clear that

“the principle of equality of individuals before the law, as enshrined in the [Korean]

Constitution, also appl[ies] to foreigners,”15 courts can benefit16 from an examination

of Korea’s commitments under the ICERD in articulating what it means for

noncitizens residing in Korea to receive equal treatment.

II. Korea’s Special Relationship with the CERD

1. International law as an interpretive aid and gap filler

In analyzing Korean equal protection jurisprudence Professor Ahn has

complained that “[i]n many decisions the reasoning is based on a foregone

conclusion.” 17 “A typical ending,” he explains, “may go something like this: ‘The

discrimination here is not unconstitutional because it is not unreasonable.’”18 But if

recent cases on noncitizens’ rights are any indication, the Constitutional Court seems

13 International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “ICERD”), Dec. 21, 1965, S. Treaty Doc. No. 95-18 (1994), 660 U.N.T.S. 195. Ratified by the Republic of Korea on Dec. 5, 1978. Korea has made no reservations, understandings or declarations to the ICERD. Korea is also a party to the Article 14 individual complaint procedure. Available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en 14 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 7, para. 27. CERD/C/KOR/14. (Hereinafter “CERD 2006”). Available at http://www.unhcr.org/refworld/docid/45c30ba10.html 15 2006 CERD, supra note 14 at para. 11. 16 See generally Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. Cin. L. Rev. 367 (1985). 17 Ahn Kyong-Whan, supra note 11 at 102. 18 Id.

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prepared to remedy what Professor Ahn has referred to as “the judicial tradition of

not elaborating the ratio decidendi of decisions.”19

In 2007, for example, the Court decided a case involving the equal

application of the Labor Standards Act to foreign employees. In providing its

rationale for a finding of “unreasonable discrimination,” the Court starts out very

much in the “forgone conclusion” mode that Professor Ahn complains of, stating that

since “it is difficult to find reasonable grounds that essential particulars of labor

standards guaranteed by the Labor Standards Act are not applied to foreign

[workers] . . . it must be unreasonable discrimination that companies exclude

[them].” 20 Nevertheless, the Court goes on to clearly state the principle it seeks

establish, namely that foreigners have the “right to enjoy equal labor conditions on

the labor of same value”; and, in order to clarify the applicable Korean legal

standard, the court notably cites to the “the International Covenant on Economic,

Social and Cultural Rights.”21

Looking to Korea’s international human rights treaties for guidance in

resolving questions on the legal rights of foreigners residing in Korea is well

supported by the Article 6(2) of Constitution, which states “[t]he status of aliens

shall be guaranteed as prescribed by international law and treaties.” 22 Such an

approach is also directly in line with international commitments and Korea’s own

“National Action Plan (NAP) 2007-2011 for the Promotion and Protection of Human

19 Id. (emphasis added). 20 Decision of Aug 30, 2007, 2004 Hun Ma 670 (Korean Constitutional Court) (emphasis added). For another example of the Constitutional Court elaborating the ratio decidendi, see infra note 65 Decision of Nov. 29, 2001, 99 Hun Ma 494 (Korean Constitutional Court). 21 Id. (“The labor right includes not only ‘a right to a working position’ but also ‘a right to a working environment.’ Since the latter reflects the nature of liberty, which defends against the infringement upon human dignity, it includes the right to claim a healthy working environment, a just reward for work, and the guarantee of reasonable working conditions, and foreign workers can enjoy this right.”) 22 Korean Constitution, Article 6(2).

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Rights.” 23 As the Republic of Korea explained to the Human Rights Council in

May 2008, “the observations and recommendation by the United Nations treaty

monitoring bodies were set as standards in the NAP.”24

2. The status of the ICERD as domestic law

The Committee on the Elimination of Racial Discrimination, which monitors

implementation of the International Convention on the Elimination of All Forms of

Racial Discrimination, is the UN’s oldest treaty monitoring body and the ICERD is

one of the most important human rights instruments of international law. However,

even though Korea has been a party to the ICERD since 1978, the Convention has

never been cited by a Korean court as a legal authority.25 This is troubling for at

least two reasons. First, as Korea has explained to the CERD “the relative lack of

multi-ethnic experiences have been conducive to . . . prejudice against foreign

cultures and people”; 26 further, “[t]he principle of the ‘pure-blooded’ based on the

Republic of Korea’s pride in the nation’s ethic homogeneity, has incurred various

forms of discrimination[.]”27 In fact, discrimination based on “foreign nationality” has

been identified by the Korean government as a “major concern[]” and is listed as one

of the “five main types of discrimination in [Korean] society.”28 Second, the status

of the ICERD is unique in that “it has the same authority of domestic law and does

23 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review - Republic of Korea, 29 May 2008; page 4, para. 5. (Emphasis added). A/HRC/8/40; A/HRC/WG.6/2/L.6. Available at: http://www.unhcr.org/refworld/docid/485b96303.html 24 2006 CERD, supra note 14 at para. 27. 25 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. (Hereinafter “CERD 2007”). Available at: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.KOR.CO.1.pdf 26 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 10, para. 44. CERD/C/426/Add.2. (Hereinafter “CERD 2003”). Available at: http://www.unhcr.org/refworld/docid/3f24767b4.html 27 2006 CERD, supra note 14 at para. 44. 28 UN Human Rights Committee (HRC), UN Human Rights Committee: Third Periodic Report, Republic of Korea, 21 February 2005, page 15, para 46. CCPR/C/KOR/2005/3. Available at: http://www.unhcr.org/refworld/docid/43f2ff650.html

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not necessitate additional legislation,” 29 as the Republic of Korea has made clear to

the CERD on several occasions. Nevertheless, “although the 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.” 30 Considering that discrimination based on “foreign nationality” is

one of the main forms of discrimination in Korean society as well as one of the

forms of discrimination that the ICERD was designed to eliminate, the under-

utilization of the ICERD as a domestic remedy with “the same authority of domestic

law” is disappointing.31 The Committee has pointed out that the situation may be the

result of “a lack of awareness of the availability of legal remedies” and thus has

suggested “information campaigns and education programmes on the Convention and

its provisions.”32

29 CERD 2006, supra note 14 at para. 10. See also CERD 2003, supra note 26 at para. 10. 30 CERD 2007, supra note 25. (Emphasis added). 31 The need for the Convention becomes even more apparent considering the absence of domestic remedies (other than the ICERD) for racial discrimination. In August 2007 the CERD Committee expressed its “concern[] about the persistence of widespread societal discrimination against foreigners” in Korea and urged the Republic to “adopt further measures, including legislation, to prohibit and eliminate all forms of discrimination against foreigners.” (CERD 2007, supra note 25 at para 11.) In February 2008, the Republic of Korea explained that “[t]he Government submitted an anti-discrimination bill . . . before the National Assembly on December 12, 2007 [which offered] a concrete means to uphold Article 11 of the Constitution as a basic act that prohibits discrimination and provides remedies therefore.” (UN Human Right Committee (HRC), Consideration of reports submitted by States parties under article 40 of the Covenant: International Covenant on Civil and Political Rights: concluding observation 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. 4.) (Emphasis added). Unfortunately, however, this bill failed to be enacted by the National Assembly. In January 2009, the Republic of Korea explained that it was again “conducting research on related domestic laws and foreign cases of similar legislation and is redoubling its efforts to introduce the Anti-Discrimination Act.” (UN Committee on the Elimination of Racial Discrimination (CERD), Reports submitted by States parties under article 9 of the Convention: International Convention on the Elimination of all Forms of Racial Discrimination: information provided by the Government of the Republic of Korea on the implementation of the concluding observations of the Committee on the Elimination of Racial Discrimination, 23 January 2009; page 3, para. 9. CERD/C/KOR/CO/14/Add.1). In August 2009, after an incident allegedly involving “hate speech” against a foreigner occurred on a bus in Seoul, two National Assemblypersons independently announced intentions to introduce anti-discrimination legislation. See Anti-Racism Law Proposed, The Korea Times, Aug. 28, 2009. See also 더러운 X, 왜 외국X 만나고 다니냐 (You Dirty X, Why Are You Consorting with Foreigner X?), The Hankyoreh, Sept. 18, 2009. 32 CERD 2007, supra note 25 at para. 20.

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3. The article 14 individual complaint procedure

Korea is also a party to the ICERD’s optional Article 14 individual complaint

procedure, which recognizes the CERD’s competence to act as a quasi-judicial body.33

Once a complaint has been accepted by the CERD, Article 14 gives the Committee

the power “to consider such communication in the light of all information made

available to it by the State party concerned and by the petitioner and to forward its

suggestions and recommendations, if any, to the State party concerned and to the

petitioner.”34 While there are 176 state parties to the ICERD, Korea is one of only

53 that recognize the competence of the CERD to receive and consider

communications.35 Neither the United States nor Japan – two countries Korea often

looks to for legal guidance – has joined this group. The self-executing status of the

ICERD in Korea can also be contrasted with both the United States 36 and Japan. 37

33 ICERD, supra note 13. (“The Government of the Republic of Korea recognizes the competence of the Committee on the Elimination of Racial Discrimination to receive and consider communications from individuals or groups of individuals within the jurisdiction of the Republic of Korea claiming to be victims of a violation by the Republic of Korea of any of the rights set forth in the said Convention.” 5 March 1997.) 34 Theo van Boven, The Petition System under the International Convention on the Elimination of All Forms of Racial Discrimination, J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 271, 273 (2000) (international citations omitted). 35 ICERD, supra note 13. 36 The United States, while a party to the ICERD, has submitted a “declaration . . . making clear that this [CERD] convention is not self-executing [and] it does not create a new or independently enforceable private cause of action in U.S. courts . . . [because] [e]xisting U.S. law provides extensive protections and remedies against racial discrimination sufficient to satisfy the requirements of the present convention.” Conrad Harper, Legal Advisor of the State Department, Senate Committee on Foreign Relations testimony, May 11, 1994. David Weissbrodt, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process, 689, 690 (3d. ed. 2001). See also US Declarations and Reservations on the ICERD (stating “That the United States declares that the provisions of the Convention are not self-executing.”) ICERD, supra note 13. 37 Japan is a party to the ICERD but has submitted a declaration stating the Convention has “legal effect as a part of domestic laws in accordance with . . . the Constitution . . . Whether or not to apply provisions of the convention[] directly is judged in each specific case[.]” UN Committee on the Elimination of Racial Discrimination: State Party Report, Japan, 26 September 2000,CERD/C/350/Add.2; page 4, para. 5. Available at http://www.unhcr.org/refworld/docid/3b4c0ec84.html CERD member Mr. de Gouttes expressed concern with the Japanese declaration, noting that since “the Convention’s provisions were not self-executing in Japanese law . . . national legislation had to be adopted to implement the [CERD] convention.” UN Committee on Elimination of Racial Discrimination, Summary Record of the 1444th Meeting: Japan, U.N. Doc. CERD/C/SR.1444; page 8, para. 35. Available at http://daccessdds.un.org/doc/UNDOC/GEN/G01/409/48/PDF/G0140948.pdf?OpenElement See also Japan’s Declarations and Reservations on the ICERD (“In applying the provisions of paragraphs (a) and (b) of article 4 of the [said Convention] Japan fulfills the obligations under those

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Therefore, while national efforts to clarify the “unreasonable discrimination” standard

undertaken as a result of dialog between the CERD and the Republic of Korea

properly include plans to review “case precedents, regulations, and practices in other

countries . . . when determining the existence of a ‘reasonable cause,’” 38 Korea

should bear in mind its special relationship with the CERD.39

Korea’s stance on the self-executing nature of the ICERD as domestic law is

consistent with the recognition of the CERD’s competence to act as a quasi-judicial

body under the Article 14 individual complaint procedure since the CERD may

receive complaints that Korean courts have considered.

III. Heightened Scrutiny for Distinctions Based on Citizenship

1. Herman v. Asahi Bank

In 2000, American journalist Steven Herman sued Asahi Bank in a Japanese court.40

Herman had lived and worked in Japan for 10 years. He was engaged to a Japanese citizen,

the president of the Foreign Correspondents Club of Japan and had a high salary and good

credit.41 Nevertheless, his application for a housing loan was denied consideration by Asahi

Bank. Herman claimed the bank had “a secret manual that forbids them from accepting an

application from anyone who is not a citizen or resident of Japan.”42 Herman was inspired to

bring his case by fellow journalist Ana Bortz, who had won a landmark discrimination case

just one year earlier after being shooed out of a Japanese owned store for being a

provisions to the extent that fulfillment of the obligations is compatible with the guarantee of the rights to freedom of assembly, association and expression and other rights under the Constitution of Japan[.]”) ICERD, supra note 13. 38 CERD 2006, supra note 14 at para. 27. (Emphasis added). 39 The CERD consists of “eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from among their nationals[.]” ICERD Art. 8, supra note 13. 40 See Timothy Webster, Reconstituting Japanese Law: International Norms and Domestic Litigation, 30 Mich. J. Int'l L. 211, 223 (2008) (Hereinafter “Herman v. Asahi Bank”) (“Herman v. Asahi Bank, 1789 Hanrei Jiho 96, 87 (Tokyo D. Ct., Nov. 12, 2001)”). 41 Japan’s foreigners fight back against widespread bias, USA Today, March 8, 2000. 42 Herman v. Asahi Bank, supra note 40.

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“foreigner.”43 Bortz cited the ICERD and Judge Soh Tetsuro based his enlightened44 and

rather lengthy decision on the treaty. Herman also cited the ICERD, claiming he had

received “discriminatory treatment based on nationality.”45

Unlike the Bortz decision, however, the Herman court ruled that the actions of the

Japanese bank were not discriminatory, but “reasonable.” Because “[i]t is necessary for a

bank to make a guideline for conditions for housing loans to make profits,” the court

explained, “[i]t is reasonable for the bank to turn down the request from a foreigner who is

not certain to stay in Japan.”46 The court found that even if Herman desired to stay in Japan,

it was at least possible that his resident visa would not be renewed. If that happened and he

were deported then “even if [his property] were secured by person or thing in Japan, the

expense, time and effort needed to manage and collect the debt would invariably be greater

than if the debtor had remained in Japan.”47 Whether voluntarily or not, the court reasoned,

foreigners pose a flight risk.

The court also dismissed Herman’s ICERD claim, citing Article 1(2) of the

Convention, which states the ICERD “shall not apply to distinctions, exclusions, restrictions

or preferences made . . . between citizens and non-citizens.”48 The Herman court found the

Convention inapplicable since the bank’s differentiation was based on citizenship.49

43 See Timothy Webster, Bortz v. Suzuki, Judgment of October 12, 1999, Hamamatsu Branch, Shizuoka District Court, 16 Pac. Rim L. & Pol’y J. 631 (2007) (Hereinafter “Bortz v. Suzuki”) (“Bortz v. Suzuki, 1045 Hanrei Tamuzu 216 (Shizuoka D. Ct., Oct. 12, 1999)”). 44 See e.g. id. at 659 (explaining “People will see the value of both foreigners and Japanese if they remember all people enjoy irreplaceable basic human rights, they all harbor deep feelings of empathy for others, and they then put this into daily practice by respecting others.”) 45 Foreigner sues bank over loan rejection, The Japan Times, February 8, 2000. 46 Court OKs bank’s rejection of housing loan to foreigner, Kyodo News, November 12, 2001. 47 Herman v. Asahi Bank, supra note 40. 48 ICERD Article 1(2), supra note 13. 49 Herman v. Asahi Bank, supra note 40.

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2. Habassi v. Denmark

Ziad Ben Ahmed Habassi was a Tunisian citizen living in Denmark with a

“permanent residence permit.”50 He was “married to a Danish citizen and had a regular

job.”51 Nevertheless, like Herman, Habassi was “refused a loan by a Danish bank on the

sole ground of his non-Danish nationality and was told that the nationality requirement was

motivated by the need to ensure that the loan was repaid.”52 Unlike Herman, however, after

exhausting domestic remedies Habassi was able to bring his case to the CERD since

Denmark (like Korea) is a party to the Article 14 individual complaint procedure.

The Danish authorities, like the Japanese, had found nothing unreasonably

discriminatory about considering foreigners a flight risk. But with the ICERD

“reasonableness” takes on another level of scrutiny. The Habassi case addresses the same

issues as the Herman case but, because of the heightened scrutiny, comes to different

conclusions.

While the Herman court had dismissed the ICERD claim (citing Article 1(2)) and

decided, without further inquiry, that the treaty was inapplicable to distinctions based on

citizenship;53 in Habassi, the Committee was prepared to look into the “real reason behind

the requirement of citizenship.”54 The clause cited by the Herman court will not insulate

every citizen/noncitizen distinction from scrutiny because as the CERD has made clear:

“Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition

of discrimination.”55 Therefore, where circumstances suggest that citizenship or nationality

50 Ziad Ben Ahmed Habassi v. Denmark, CERD/C/54/D/10/1997, UN Committee on the Elimination of Racial Discrimination (CERD), 6 April 1999; para. 2.1. (Hereinafter “Habassi v. Denmark”). Available at: http://www.unhcr.org/refworld/docid/3f588f02a.html 51 Id. at para. 2.5. 52 Id. at para. 9.3. 53 It should be noted that the approach of Judge Otake Takashi in the Herman court stands in marked contrast to the findings of Judge Soh Tetsuro in the Bortz case. See e.g. “Whether they have Japanese citizenship or not, discrimination based on race or skin color is clearly prohibited as racial discrimination under CERD.” Bortz v. Suzuki, supra note 43 at 640. 54 Habassi v. Denmark, supra note 50 at para. 8.3. 55 UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation

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is being used as a proxy for racial discrimination “it is appropriate to initiate a proper

investigation into the real reasons behind the . . . policy[.]”56

The approach of the CERD in the Habassi case tracks the approach laid out by the

Committee in General Recommendation 30, On Discrimination Against Noncitizens:57

Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.58

The “legitimate aim” put forward by the bank was the “subsequent judicial recovery of the

amount of the loan in case of default.”59 The criterion used to achieve that aim was “the

requirement of Danish citizenship.”60 In reaching its conclusions, the Committee found

nothing unreasonable about the bank’s wholly legitimate aim of setting up guidelines for

issuing loans and making sure payments get made. Rather, what the Committee objected to

was how the criterion was applied in the achievement of this aim. “Nationality,” the

Committee explained, “is not the most appropriate requisite when investigating a person’s

will or capacity to reimburse a loan.”61 Other criteria, such as “[t]he applicant’s permanent

residence or the place where his employment, property or family ties are to be found may be

more relevant.”62

The Committee addressed the flight risk argument put forward by the Danish and the

Japanese banks (and mentioned by the foreign husband in the Korean scenario) by pointing

XXX on Discrimination Against Non Citizens, 1 October 2002; para. 2. (Hereinafter “CERD Gen. Rec. 30”). Available at: http://www.unhcr.org/refworld/docid/45139e084.html 56 Id. Failure to conduct such an investigation could result in a breach of the ICERD. Article 2(c) and (d) of the Convention place an affirmative duty on state parties “to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination” and to “prohibit and to bring an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization[.]” ICERD, Article 2(c) and (d), supra note 13. 57 CERD Gen. Rec. 30, supra note 55. 58 CERD Gen. Rec. 30, supra note 55 at para 4. 59 Habassi v. Denmark, supra note 50 at para. 8.2. 60 Id. 61 Id. at para. 9.3. 62 Id.

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out that citizens are equally capable of fleeing the jurisdiction. “A citizen may move abroad

or have all his property in another country and thus evade all attempts to enforce a claim of

repayment.” 63 Finally, the Committee recommended that Denmark “take measures to

counteract racial discrimination in the loan market,” because judging the nationality

requirement criteria “in the light of the objectives and purposes of the Convention”:

Financial means are often needed to facilitate integration in society. To have access to the credit market and be allowed to apply for a financial loan on the same conditions as those which are valid for the majority in the society is, therefore, an important issue.64

This is the same argument advanced by Mr. Stevens, the foreign husband in Korea

who was mentioned in the introduction. “Korea is very unfair to foreign men that

have to support and raise a Korean family in this country,” he explained, “the

government does nothing to help us provide adequate credit and housing for our

families.” Clearly the banking restrictions complained of by Mr. Stevens are ripe for

a challenge under the ICERD.

3. Quarantines for foreigners

The Habassi case is also useful in analyzing the scenario mentioned involving

quarantines and passport confiscation for foreign teachers in Korea. That is, while the aim

of effectively addressing public health concerns, and especially emergency pandemics, is

clearly legitimate, nationality is not the most appropriate criterion for determining who poses

a threat. Noncitizens may travel abroad where the disease is present, but as the CERD

points out in Habassi: citizens also travel abroad. Like similar nondiscrimination provisions

in international jurisprudence, the ICERD is prepared to uphold a “differentiation . . . if the

aim is to achieve a purpose which is legitimate and if the criteria used are reasonable and

63 Id. 64 Id. at para. 9.2.

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objective[.]”65 The ICERD analysis,66 however, must be also conducted “in the light of the

objectives and purposes of the Convention” and bearing in mind that “[x]enophobia against

non-nationals . . . constitutes one of the main sources of contemporary racism.”67 And

xenophobia has historically played a role in quarantining noncitizens.

Quarantine involves restrictions on a host of rights – namely freedom of movement,

freedom from arbitrary detention, and the right to privacy – all of which may be limited “in

order to allow a State to take measures dealing with a serious threat to the health of the

population[.]”68 Nevertheless, the right to nondiscriminatory treatment must also be given

due respect and any “measures must be specifically aimed at preventing disease”69 not at

isolating particular races or nationalities from the general population. A US court made the

same point in Wong Wai v. Williamson when it struck down discriminatory quarantine

regulations imposed on Chinese and other Asian noncitizens during the bubonic plague:

65 UN Sub-Commission on the Promotion and Protection of Human Rights, The rights of non-citizens: Preliminary report of the Special Rapporteur, Mr. David Weissbrodt, 6 June 2001, page 24, para. 122. E/CN.4/Sub.2/2001/20 (citing Exclusion, Equality Before the Law and Non-Discrimination, a seminar organized by the Secretariat General of the Council of Europe in cooperation with the International Center for Sociological, Criminal and Penitential Research and Studies (INTERCENTER) of Messina, Italy (Taormina Mare, Italy, 29 September - 1 October 1994), p. 135) (“Equality does not necessarily mean identical treatment in every instance. A differentiation does not constitute discrimination if the aim is to achieve a purpose which is legitimate and if the criteria used are reasonable and objective . . . Only differentiation which is not factually justified is discriminatory.”). See also Mümtaz Karakurt v. Austria, CCPR/C/74/D/965/2000, 29 April 2002. (UN Human Rights Committee examining the non-discrimination clause of the International Covenant on Civil and Political Rights and noting “its constant jurisprudence that not all distinctions made by a State party’s law are inconsistent with this [non-discrimination] provision, if they are justified on reasonable and objective grounds.”). The Korean Constitutional Court, it must also be noted, followed the identical approach in conducting its own equal protection analysis. In a case explaining the “Meaning of the Principle of Equality” for foreigners under the Korean Constitution, the Court found that: “Everyone is entitled to the right to claim equal treatment, and the right to equality is the most basic of all basic rights. The constitutional principle of equality, however, does not require absolute equality negating any form of differential treatment whatsoever. Rather, it means relative equality forbidding discrimination in legislating and executing laws without reasonable basis. Therefore, differentiation or inequality with reasonable basis is not against the principle of equality. Whether a discrimination is grounded on a reasonable basis or not depends on whether such discrimination is a necessary and adequate means to achieve a legitimate legislative purpose, while upholding the constitutional principle for respect for human dignity.” Decision of Nov. 29 2001, 99 Hun Ma 494 (Korean Constitutional Court) (internal citations removed). 66 CERD Gen. Rec. 30, supra note 55 at para 24. (“[O]nce a non-citizen has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment.”). 67 CERD Gen. Rec. 30, supra note 55 at Preamble. 68 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, para. 25. 69 Id.

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As a general proposition . . . regulations are necessary to protect the public health and secure public comfort . . . and appropriate measures intended and calculated to accomplish these ends are not subject to judicial review. But nevertheless such measures or means must have some relation to the end in view, for, under the mere guise of the police power, personal rights . . . will not be permitted to be arbitrarily invaded . . . In the light of these well-established principles, the [quarantine measures] cannot be justified. . . They are not based upon any established distinction in the conditions that are supposed to attend this plague, or the persons exposed to its contagion, but they are boldly directed against the Asiatic or Mongolian race as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual; and the only justification offered for this discrimination was a suggestion made by counsel for the defendants in the course of argument, that this particular race is more liable to the plague than any other. No evidence has, however, been offered to support this claim, and it is not known to be a fact. This explanation must therefore be dismissed as unsatisfactory.70 Ironically enough, Chinese authorities seem to have neglected the wisdom of this

decision when dealing with H1N1 “swine flu” virus, creating concern that “Mexicans [had

been] being isolated solely because of their nationality.”71 China’s measures to combat the

virus were called “discriminatory and ungrounded” 72 by Mexico’s foreign minister.

Whatever the case may be, neither Mexico nor Mexicans would have any chance of

challenging the measures at the international level through the ICERD. While China is a

party to the Convention, it does not recognize the competence of the Committee under the

Article 14 individual complaint procedure, nor has it accepted the Article 22 state party

dispute settlement procedure that would allow Mexico to bring the matter before the

International Court of Justice.73

China’s obligations under the Convention stand in stark contrast to those of Korea.

Thus measures such as confiscated passports and quarantines for “foreign teachers” solely on

70 Wong Wai v. Williamson, F. 1, 7 (N.D. Cal. 1900). 71 China and Swine Flu: Are Mexicans Being Singled Out?, Time, May 4, 2009. It should also be noted that discrimination against a “particular nationality” (e.g. Mexicans) is clearly prohibited by the ICERD, Article 1(3). 72 China Forces Dozens of Mexican Travelers Into Quarantine, Wall Street Journal, May 4, 2009. 73 Declarations and Reservations to the ICERD supra note 13. (“The People’s Republic of China has reservations on the provisions of article 22 of the Convention and will not be bound by it.”).

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the basis of nationality, as described in the introduction, would clearly be prohibited in the

Korean context.

4. Rights properly reserved for citizens

Unlike the previous examples, the Korean scenarios involving government provided

benefits for senior citizens (such as free tickets for subways, buses, or public museums) and

resident registration systems (including birth registration) are more likely to survive a

challenge under the ICERD. While the Convention places state parties “under an obligation

to guarantee equality between citizens and non-citizens in the enjoyment of [fundamental

human] rights,”74 the ICERD does not forbid every difference in treatment between citizens

and non-citizens. Certain rights “such as the right to participate in elections, to vote and to

stand for election, may be confined to citizens.”75 The Republic of Korea has put forward a

similar list of citizens’ rights in its reports to the Committee explaining that “citizenship is a

prerequisite for the exercise of certain rights, e.g. the right to vote, the right to hold public

office, as well as the right to carry out official duties, [and] these rights are inapplicable to

foreigners.”76 While the enumerated rights are “exceptions . . . which, by their nature, are

regarded as being applicable only to nationals of the Republic [of Korea],” the list is not

exclusive.77 Senior citizen entitlements, such as subway and bus passes, are generally

connected to the right to receive welfare benefits, which is considered a “hallmark of

74 CERD Gen. Rec. 30, supra note 55 at para 3. 75 Id.76 CERD 2006 supra note 14 at para. 11. 77 See e.g., The Rights and Responsibilities of Citizenship, British Institute of International and Comparative Law, p. 13 (2009) (citing P. Gardner, Hallmarks of Citizenship – a Green Paper, British Institute of International and Comparative Law, 1994 and Citizenship – a White Paper, British Institute of International and Comparative Law, 1997) (explaining “[t]he Hallmarks of Citizenship encompass civic, political, social and economic rights and duties traditionally considered to ‘set the boundaries as to the proper scope of the legal rights and obligations to which citizenship refers . . . The hallmarks that were studied in this report are as follows: Freedom of Movement; Right to a Passport; Right to Vote; Right of Petition and to a Referendum; Right to Stand as a Candidate in National and Local Elections; Right to Access to Public Office and Public Service; Right to Protection; Right to Welfare Benefits; Right to Health Care; Right to Education; Right to Employment; Right to Housing; Linguistic Rights; Right to Non-discrimination; Duty of Allegiance; Duty to Undertake Military or Alternative Service; Duty to Pay Taxes; Duty to Pay National Insurance Contributions.”).

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citizenship.”78 In that respect, it is significant to note that both Ms. Strawn and Mr. Fischer,

the senior noncitizens who brought the issue forward in the introduction, advocated for

providing resident foreigners with these benefits from a policy perspective rather than a rights

perspective. Both argued that Korea stood to gain considerable reputational benefits by

“being friendly to foreigners”79 and showing “the famous Korean culture of respect for the

elderly is alive and well and is applicable to all, not just Koreans.”80 Such a shift in policy,

they argued, “would hardly be costly but would reap rich rewards in terms of good feelings

about Korea.”81

5. Foreign fathers to Korean children

The case of foreign fathers, like Mr. Yates mentioned in the introduction,

whose names do not appear alongside the names of their Korean wives and children

on the “Resident registration system” (jumin-deung-rok-pyo: deung-bon) also involves

one of the core features of citizenship, which is often reserved for nationals. The

issue, however, is not so easily resolved.

Discussion concerning differential treatment under the Korean jumin-deung-rok-

pyo system is fairly recent. Anyone familiar with noncitizens’ issues in Japan,

however, will quickly recognize a precedent: the juminhyo. Like the Korean jumin-

deung-rok-pyo system, the Japanese juminhyo resident registration system excludes

foreigners and thus keeps foreign spouses separate from their citizen families. The

Japanese juminhyo system has been strongly criticized for years, with ethnic Koreans

residing in Japan among its harshest critics. Article 39 of Japan’s Basic Resident

Registration Law states that “foreign nationals” may not appear on the juminhyo, 82

just as the Korean Ministry of Public Administration and Security explained to Mr. 78 Id. 79 Friendly Korea, supra note 3. 80 How to Make Foreigners Welcome Here, supra note 3. 81 Id. 82 Japanese Ministry of Internal Affairs and Communications.

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Yates that “Clause 1, Article 6, the Resident registration law implies foreigners are

not a member of registration in Korea.” 83 The complaints levied by noncitizens

against both systems are also similar:

[T]he juminhyo does not include . . . foreign spouses with [their] children. Among the problems “invisible dads” and “missing moms” have had to put up with: neighbors who assume their marriage is not legal and their children are illegitimate; visits to their “single-parent household” by welfare officials; and, more seriously, complications when trying to gain the right of child custody after a divorce.

84

In 2001, a Japanese NGO filed a report called “Juminhyo and Discrimination”

with the CERD.85 In 2003, dissatisfaction with the Japanese juminhyo system peaked

in protests when a bearded seal, nicknamed “Tama-chan” by locals, was granted a

special resident registration (tokubetsu juminhyo).86 The rally cry became that while

an animal is eligible for the juminhyo the law “excludes foreigners – including those

with permanent residency, such as many ethnic Koreans – from residence registry.”87

In 2009, as a result of sustained pressure and an increasingly diverse population, the

Japanese government announced that it would “amend the national registry system to

include foreign nationals” including “Korean residents with special permanent status.”88

As mentioned above, differential treatment of noncitizens under the resident

registration system (jumin-deung-rok-pyo) has received very little attention in Korea.

One of the reasons may be because so much attention has been focused on the

83 Korean Ministry of Public Administration and Security supra note 6. 84 Living off the record, The Japan Times, January 20, 2002. See also Tamara Swenson, Japan's Family Registry System: International Marriages Face a Policy of Exclusion, DawnCenter, 2007. Available at http://www.dawncenter.or.jp/english/publication/edawn/0212/registry.html See also Lucinda Otsuka, Foreign Residents and the Family Register, UMJ Volume 3.1 (Juminhyo Special). Available at http://www.tabunka.org/newsletter/familyreg.html 85 ISSHO Kikaku, http://www.issho.org 86 David Chapman, Tama-chan and Sealing Japanese Identity, Critical Asian Studies, Volume 40, Number 3, (2008). 87 Foreigners seek same rights as seal, The Japan Times, February 23, 2003. 88 Foreigners may be logged in resident registry, The Japan Times, February 26, 2009. See also Changes to the Basic Resident Registration Law: Foreign Residents will start to be applied to the Basic Resident Registration Law, Foreign Residents Register Planning office, Japanese Ministry of Internal Affairs and Communications. Available at: http://www.soumu.go.jp/main_sosiki/jichi_gyousei/c-gyousei/zairyu_english.html

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discriminatory treatment that Korean women had received under the family registration

system (hoju).89 The hoju system was “fiercely condemned by civil rights activists and

feminists as infringing on women’s legal rights.” 90 In 2003, the National Human

Right Commission of Korea (“NHRCK”) submitted an opinion to the Constitutional

Court stating that the “hoju system is a violation of the Constitution, and the hoju

system itself violates human rights.” The NHRCK opinion goes on to explain that

The rights of females as mothers, daughters, and wives are violated through prioritizing paternal lineage and male blood succession that makes children take on the father’s name and reserves the position of head of family for men. [It] forces hierarchical family relationships, prioritization of paternal lineage, and male blood succession without logical reason[.]91 In December 2004, politicians joined in condemning the hoju as an “evil system [that]

has been trespassing on women’s rights for centuries” and promised to “abolish the hoju

system before the end of this year.”92 In February 2005, the Constitutional Court of Korea

found the hoju system was incompatible with the Constitution.93 In January 2008, the hoju

system was finally abolished.94 The jumin-deung-rok-pyo, however, is still in use.

Foreign fathers, like Mr. Yates, experience differential treatment under the jumin-

deung-rok-pyo system that is similar to the differential treatment Korean wives and daughters

had experienced under the hoju system, but so far it has not been seen as “unreasonable

discrimination.” Why? As mentioned previously, one of the obvious reasons is the close

connection that a residents’ registry has to citizenship, but there is another compelling reason.

While a begrudging consensus now exists among Koreans that “prioritizing paternal lineage

and male blood succession” is discrimination “without logical reason,” the practicing of 89 Like the jumin-deung-rok-pyo, Korea inherited the hoju from Japan. Japan, however, abandoned their hoju styled system in 1948. 90 GNP agreeing to abolish 'hoju' system, The Korea Herald, September 3, 2004. 91 The Hoju System is Unconstitutional and a Violation of Human Rights, National Human Rights Commission of Korea, March 11, 2003. 92 152 male lawmakers push to scrap hoju system, The Korea Herald, December 28, 2004. 93 Decision of Feb. 3, 2005, 2001 Hun Ga 9 (Korean Constitutional Court) (finding “constitutional nonconformity”). 94 Id.

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prioritizing Korean lineage and Korean blood succession is widely accepted. The

patriarchal concepts embedded in the hoju system may be becoming outdated but the concept

of “one nation, one bloodline, one people”95 is still very current and enthusiastically

promoted. Indeed, the concept is often pursued with a passion that blurs the distinction

between ethnicity and nationality to the point where foreigners of Korean descent are called

“compatriots”96 and nationals of non-Korean descent are called “foreigners.”97

Needless to say, this puts Korea in a very awkward position in relation to its ICERD

commitments. In fact, during a very frank exchange with the CERD in 2007, the Republic

of Korea was told that the way nation has chosen to define its identity comes dangerously

close to what the ICERD was designed to eliminate.98 “One Expert was concerned that the

Government had to be careful of how it described itself, because such descriptions had

consequences [and presented] the danger[] of creating a fixed identity.”99 The Committee

especially took issue with the nation’s use of the terms “pure-blooded” (sunhyeol) and

“mixed-blood” (honhyeol) explaining that “such terminology, and the idea of racial

superiority that it may entail, continues to be widespread in Korean society.”100 The

Committee also expressed “concern that the emphasis placed on the ethnic homogeneity of

the State party may represent an obstacle to the promotion of understanding, tolerance and

95 Hankyoreh, hanpeatjule, hanminchok (한겨레, 한핏줄, 한민족).96 Is Testing Foreign Teachers for AIDS Discriminatory? Seoul Shimun, Feb. 10, 2009. An advocate of mandatory HIV/AIDS tests for foreign teachers was interviewed and asked if ethnic Korean English teachers from the US and Canada (without Korean nationality) should also be tested for AIDS, the advocate explained they should not “because treating compatriots like foreigners would be quite a stretch.” (Emphasis added). 97 Appointment of Naturalized Citizens to Public Office, KBS News, July 29, 2009. Ethnic German and naturalized Korean Lee Cham was appointed to the position of chief of the Korea Tourism Organization. KBS news reported on a “dispute” that was current in Korean society. Those “For appointment” argued that “Naturalized foreigners are Korean citizens. Their entry into public office is based on their competence.” Those “Against appointment” countered: “Legally there is no issue but still, they are foreigners, are they not?” (Emphasis added). 98 Committee on Elimination of Racial Discrimination considers report of Republic of Korea, Press Report, August 10, 2007. Available at http://www.unhchr.ch/huricane/huricane.nsf/view01/B77E3956B335DD33C1257333004FA7CA?opendocument 99 Id. 100 CERD 2007, supra note 25 at para. 12.

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friendship among the different ethnic and national groups living on its territory.”101

The Committee’s findings are certainly relevant to Mr. Yates’s argument for equal

treatment as a noncitizen, but they are perhaps even more relevant to his daughter who, as a

Korean citizen, may receive unequal treatment because of her descent status. She may face

discrimination as a “mixed blood” child with a diluted claim to nationality. But she may

further be discriminated against as the child of a foreign father. Her claim to Korean

descent may be seen as weaker and therefore less deserving of the government’s attention

because it derives from a Korean woman and not a patriarch. For instance, the CERD has

requested that “disaggregated statistical data on the number of persons born from inter-ethnic

unions living [in Korea]” 102 but the Korean NGO MINBYUN has pointed out that

government is “unable to perform an accurate survey on ‘racially mixed’ people in Korea,

because it focuses its policy only on internationally married migrant women and their

integration into the Korean ‘nation.’”103 Making certain that data on Korean children’s

foreign fathers is readily available and listed where such information is normally stored, such

as on the jumin-deung-rok-pyo, would assist in gathering information on inter-ethnic unions

as the CERD has requested and be a step toward fulfilling the Committee’s recommendation

to affirmatively “recognize the multi-ethnic character of contemporary Korean society” and

promote “understanding, tolerance and friendship among the different ethnic and national

groups living on its territory.”104

In the final analysis, considering the objectives and purposes of the ICERD, it seems

doubtful that the government could provide a legitimate aim that would outweigh a Korean

child’s right to nondiscriminatory treatment and be capable of justifying the exclusion of her

101 Id. The Committee’s advice seems apt considering the struggles that South Korea’s “mixed children” continue to face. See e.g. Baby Boom of Mixed Children Tests South Korea, The New York Times, Nov. 28, 2009. 102 Id. 103 NGO Report under ICERD, MINBYUN-Lawyers for a Democratic Society, June 2007. (Emphasis added). Available at http://www2.ohchr.org/english/bodies/cerd/docs/ngos/MINBYUN.pdf 104 CERD 2007, supra note 25 at para. 12.

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foreign father from the residents’ registration system. Clearly the jumin-deung-rok-pyo

system’s differential treatment of “mixed-blood” Korean children is ripe for challenge under

the ICERD.105

IV. Conclusion

The ICERD is a neglected treaty whose time has come in Korea. Like Japan, Korea

is experiencing a dramatic change in the ethnic diversity of its population. But unlike Japan,

or any other nation in East Asia, the Convention forms part of domestic law and its binding

provisions are backed up by the Article 14 individual complaint procedure. Nevertheless, as

the Committee has pointed out, there is “a lack of awareness”106 in Korea of the ICERD as a

remedy and many believe that Korea has no laws against racial discrimination.107 Those

few who are aware of the Convention are generally unaware of its expansive definition of

racial discrimination108 and that it offers protection from xenophobic rules applied to

“foreigners.” In the words of Committee member Patrick Thornberry: “It is an obvious

point that the umbrella term of the Convention is ‘racial discrimination’ not ‘race’.”109 This

point, however, has yet to be fully appreciated in Korea.

105 As this article was being prepared for publication the Supreme Court announced that some changes would be made to accommodate foreigners facing difficulties with the family registration system. See e.g. Court Eases Foreigner Registry Rules, The JoongAng Daily, Oct. 7, 2009 (reporting that “The Supreme Court said . . . it will revise regulations to allow foreigners married to Koreans here to have their nationality and foreigner registration number recorded on the family relation registry . . . The rule change will resolve inconveniences that foreigners who have families with Koreans face. For instance, when the spouse of a Korean wants to open a bank account on behalf of his or her child, he or she must be tested by a notary public to prove his or her relationship with the kid or bring along his or her wife or husband.”) See also 외국인 가족관계등록부 규칙 개정 (Family Register Rules Revised for Foreigners), Kyunghyang News, Oct. 7, 2009. 106 CERD 2007, supra note 25 at para. 20. 107 See e.g. 국내 첫 ‘인종차별 사례’ 후세인 교수, “내가 백인이었으면...” (Prof. Hussain Brings First Racial Discrimination Case in the Nation, “If I were white . . .”), The Chosun Ilbo, Sept. 7, 2009 (reporting that “한국 법체계가 인종차별을 범죄로 인정하지 않아” (“Korean law does not recognize racial discrimination as a crime”)). See also South Koreans Struggle With Race, The New York Times, Nov. 1, 2009. 108 See ICERD Article 1(1), supra note 13. (“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”) 109 Patrick Thornberry, Confronting Racial Discrimination: A CERD Perspective, Human Rights Law Review 5:2, 239, 250 (2005).