Part 3 of my interview with The Korea File about the 1975 marijuana crackdown

Last week I posted links to the first two parts of an interview with myself by Andre Goulet for his podcast, The Korea File (Part 1: "A History of Korean Social Movements"  Part 2: "Korean Identity and Anti-Americanism"), and yesterday he posted the third and final part, titled "Weed, Counterculture and Dictatorship," about how rock music and the counterculture were suppressed under the guise of a marijuana crackdown in 1975.

The propaganda film I mentioned (found at ehistory.kr) was found and posted by Mark Russell here.

Thanks again to Andre inviting me to do this interview; have a look under "Episodes" here to look through the other interviews about Korean music, culture, and society he's done.

Korea Times on the CERD decision and its 'piquing' of the government

Last Friday the Korea Times reported on the CERD ruling in an article titled "UN racism ruling piques government" (hat tip to commenter Jessica). Describing the ruling, the article opens as follows:

The government remains slow in responding to calls for the removal of racist policies, running the risk of further alienating itself from global standards.
[...]
The U.N.-affiliated committee ruled Wednesday that the HIV testing of foreign teachers in Korea is a form of discrimination.

Mind you, nowhere in the article is there any proof offered to back up the assertion that the government has been piqued by or is resentful of this ruling; only the following is reported:

In reaction, the Ministry of Justice admitted that it was aware of the ruling through media reports.

"We have not received an official ruling through the Ministry of Foreign Affairs yet. We will make a decision on how to respond to the ruling after we receive it," a ministry official at the immigration control bureau said.

It will be interesting to see what happens, especially considering the fact that the government took nine months to respond to the CERD petition for in the first place (six months past a 90 day deadline), and the local media ignored the initial acceptance of the petition completely. As well, headlines here are portraying the ruling as Korea being admonished by the UN (Korea Times: "Korea told to scrap HIV test on foreign teachers,"  KBS: 'UN CERD: "Korea, testing only foreign instructors for HIV is a violation of human rights."' SBS: 'UN CERD "Korea, abolish HIV testing of foreign teachers."') which could be spun into a blow to Korea's sovereignty (and pride).

The Korea Times also reported that:

HIV and drug tests were introduced in 2007 for E-2 (foreign language instructor), E-6 (artistic performer) and E-9 (non-professional employment) visa holders.

The government later scrapped the requirement for E-6 and E-9 visa holders after facing criticism from international figures and organizations, including U.N. Secretary General Ban Ki-moon. Yet it still remains for E-2 visa holders.

While it's true that E-2 HIV tests were introduced in 2007 (with a lot of help from Anti-English Spectrum), HIV testing for what would become the E-6 visa [ie, "entertainers"] was in fact introduced in 1989, and came as a result of the anti-AIDS campaigns prior to and during the 1988 Seoul Olympics. The tests for migrant workers, now considered E-9 (non-professional employment) visa holders, but from the late 1980s labeled "industrial trainees," were implemented in 1994, so the E-6 and E-9 HIV testing regimes had been around, in the former case, for over twenty years when they were (so we're told) removed in 2010. As for U.N. Secretary General Ban Ki-moon, he not only called for removal of testing in general, but after the ROK left the E-2 tests in place, he also specifically urged that they be removed as well.

Still, it's nice to see that the KT contacted Immigration for a comment.

CERD rules that HIV tests for foreign teachers in Korea are discriminatory

In late 2009 I posted here about a foreign teacher who was refusing to take second HIV test in order to renew her teaching contract at an elementary school in Ulsan. As a result she lost her job and left Korea, and with Benjamin Wagner representing her, complaints were filed with the National Human Rights Commission of Korea (which rejected it) and Korean Commercial Arbitration Board (which ruled against her. Then in July 2012 it was announced that the United Nations Committee on the Elimination of Racial Discrimination had agreed to hear the case, though not a single Korean media outlet chose to report on this despite receiving a press release from a PR firm. Given 90 days to reply, the ROK instead took 9 months to reply, stating that "since 2010, its guidelines on the employment of foreign teachers do not specify that [foreign teachers] have to submit results of HIV/AIDS and drugs tests to have their contracts renewed," an assertion which I knew personally was not true (and which the Korea Herald looked at here). In 2010 the ROK had in fact officially removed all HIV tests for those registering for residency except for the E-2 visa tests.

In a journal article coauthored by Benjamin Wagner and myself, we asked in the title whether HIV tests were a proxy for racial discrimination, and this week the CERD answered that question: Yes.

As Benjamin Wagner wrote this week,

On May 18, 2015, the United Nations Committee on the Elimination of Racial Discrimination decided the case of a former native English teacher from New Zealand. Ms. “L.G” lost her job and work visa in 2009 after she refused to take a second round of in-country drug and HIV tests demanded by the Education Ministry just months after submitting to identical tests for the purposes of immigration. Korean citizen teachers and even ethnic Korean noncitizen teachers are able to avoid such tests. Ms. L.G. correctly regarded the government’s demands as based on unfounded stereotypes of foreigners as drug users and sexual deviants. While immigration has required a single negative test result for HIV and drugs for prospective foreign teachers since 2007, the Education Ministry began demanding their own tests, meaning that many teachers are tested multiple times during their time in the country.

In 2012, the Committee accepted L.G’s petition after she had exhausted all possible solutions in Korea (a prerequisite for bringing complaints under the CERD) including filing unsuccessful complaints with the National Human Rights Commission of Korea and Korean Commercial Arbitration Board.

An official summary of the decision is here, while the full decision can be downloaded as a .doc here. As can be seen here, of four cases considered this session by CERD, only this case was considered to be in violation of the Convention for Eradication of Racial Discrmination; the summary points out which articles of the convention the ROK was found to be violating in this case.

The summary makes public the justification the UMOE offered for the tests - something that many people taking these tests have known for years, but never admitted by the government:

[D]uring arbitration proceedings, L.G.’s employers, the Ulsan Metropolitan Office of Education (UMOE), said that HIV/AIDS tests were viewed as a means to check the values and morality of foreign English teachers.

One of the Committee's recommendations isn't very surprising:

The Committee recommends that the State party grant the petitioner adequate compensation for the moral and material damages caused by the above-mentioned violations of the Convention, including compensation for the lost wages during the one year she was prevented from working.

It continues with much more sweeping recommendations, however:

It also recommends that the State Party takes the appropriate means to review regulations and policies enacted at the State or local level related to employment of foreigners and abolish, both in law and practice, any piece of legislation, regulation, policy or measure which has the effect of creating or perpetuating racial discrimination. The Committee recommends the State party to counter any manifestations of xenophobia, through stereotyping or stigmatizing, of foreigners by public officials, the media and the public at large, including, as appropriate, public campaigns, official statements and codes of conduct for politicians and the media. The State party is also requested to give wide publicity to the Committee’s Opinion, including among prosecutors and judicial bodies, and to translate it into the official language of the State party.

This doesn't just refer to English teachers, but to regulations for all foreign workers. And as I've covered here, the references to the conduct of the media and politicians is very pertinent, considering the 'Citizens Group for Upright English Education' (also known as Anti English Spectrum) worked closely with the media and had access to politicians when pushing for the creation of the HIV testing policy (among others) in the first place.

As well, national assembly representatives have said a number of negative things about foreign teachers over the year. In June of 2009 Rep Choi Young-hee submitted 3 bills regarding native English teachers to the national assembly which called for drug tests for foreign teachers, with the bills stating that "the crime rate among native-speaking English teachers is getting higher" without offering any proof of such an increase, She also stated that immigration had lost 22,000 E-2 visa holders, but as it turns out, she used the wrong statistics. A few months later, Rep. Lee Gun-hyeon stated that foreign teacher crime was 'serious,' but released statistics showing it to be 5 times less than the Korean crime rate. Rep. Park Min-sik would chime in a month later on the "flood of unqualified native speaking teachers", while National Assembly Rep Lee Ju-yeong stated that "Of foreigners, native speaking teachers are especially potential child molesters" who may have many 'undisclosed crimes' and who may fake their backgrounds. None of this quite compares to the racially charged statements made by Kim Han-gil, who was recently the leader of the opposition party, back in 1997 about the "white good-for-nothings" flocking to Korea to teach English, and despairing that the "low culture of English speaking countries is penetrating into living rooms." He also proved to be ten years ahead of the curve by complaining that foreign teachers "they don't even have to take drug or AIDS tests."

As for the media, this decision is being widely reported. For example:

Source - UN
Republic of Korea’s foreigners-only HIV tests violated New Zealand teacher’s rights — UN experts (Office of the High Commissioner for Human Rights, Geneva; 20 May 2015)
Republic of Korea’s foreigners-only HIV test violated New Zealand teacher’s rights — UN experts (UN News Center; 20 May 2015)
Korea’s foreigner-only HIV tests violate NZ teacher’s rights (Scoop, New Zealand; 21 May 2015)
HIV tests for E-2 visas discrimination, U.N. Finds (Korea Herald, 20 May 2015)
UN Experts Urge S Korea To Compensate New Zealander Who Lost Job Over HIV Test (RTT News; 20 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (NewKerala.com, Kerala, India; 21 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (IndiaBlooms.com, India; 21 May 2015)

I really like the headlines of the first two articles here, and am glad the CERD chose to make UMOE's justification for the tests public:

Source - AFP
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (Radio Australia, ABC; 20 May 2015)
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (ABC News, Australia; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Yahoo! News, Australia; 20 May 2015)
UN experts rap S Korea over AIDS test for expat teachers (Economic Times, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Business Standard; 20 May 2015)
UN experts rap South Korea over AIDS test for expat teachers (Zee News, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (NGR News, Nigeria; 20 May 2015)
SK demanded Aids test for expat teacher (IOL News, South Africa; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Global Post; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Bangkok Post; 20 May 2015)
UN experts rap S. Korea over AIDS test for expat teachers (The Straits Times, Asia; 20 May 2015)
UN experts rap S.Korea over AIDS test for teachers (Press Trust of India; 20 May 2015)

Source - NZN
UN says Kiwi kicked out of South Korea for refusing AIDS test should be compensated (TVNZ; 21 May 2015)
UN backs Kiwi teacher kicked out of Korea (NZCity, New Zealand; 20 May 2015)
Kiwi teacher asked to take AIDS test (3 News, New Zealand; 20 May 2015)

As well, unlike how the Korean media was able to ignore the case when it was accepted, it is being reported here in a limited manner (ten articles), with the Korea Herald first breaking the story, followed by Yonhap:

UN CERD "Korea should abolish HIV tests for foreign instructors" (Yonhap; 20 May 2015)
UN CERD: "Korea, testing only foreign instructors for HIV is a violation of human rights" (KBS; 20 May 2015)
U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap English; 20 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (Money Today; 20 May 2015)
UN: "Korea’s testing of foreign instructors for HIV is a violation of human rights" (; 21 May 2015)
UN CERD "Korea, abolish HIV testing of foreign teachers" (SBS; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (News1; 20 May 2015)
UN: "Foreign instructor HIV tests are character defamation" (MBN; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test for human rights violations" (Le Monde Diplomatic; 21 May 2015)
UN racism ruling piques government (Korea Times; 22 May 2015)

Since Yonhap English news articles tend to be truncated after a few days, here's their English translation of the story:

U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap; 20 May 2015)

GENEVA, May 20 (Yonhap) -- A United Nations committee on Wednesday reprimanded South Korea's mandatory HIV testing of native English teachers as discrimination against foreigners, urging the country to abolish the policy.

Foreigners who come to South Korea to teach English are required to have a criminal background check and tests for illegal drugs and the HIV virus, while Korean nationals in equivalent jobs are not required to go through such scrutiny.

The U.N. Committee on the Elimination of Racial Discrimination (CERD) has deliberated the policy after Lisa Griffin, a former English teacher from New Zealand, filed a complaint when her contract with a local education office was not renewed in 2009 over HIV testing.

Griffin, who had received a negative result on the first test, refused to undergo a second, arguing it could stigmatize foreigners as people who have a higher risk of AIDS and could spread a negative sentiment against them.

The Geneva-based committee said the foreigner-only HIV test was "discriminatory and an affront to her dignity," urging the South Korean government to compensate for "moral and material damages" she suffered.

The mandatory testing "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 to race, color, national or ethnic origin," the committee said in a release.

The U.N. committee urged Korean authorities to take steps to revise the policies that stereotype or stigmatize foreigners, giving them 90 days to report back on the process.

As someone who contributed research to the CERD petition, I'm really happy with the results. What happens next is up to the Korean government.

Dissertation on police - gang cooperation in Korea

There's an interesting article at the Joongang Daily about Jonson Porteux, who as a doctoral student gained the trust of prosecutors and police as well as gang leaders while researching "the symbiotic relationship between the state and mafia-type groups, and why those within developed democracies tolerate, and sometimes even cooperate with, criminal organizations."

He conducted field work on the subject in Korea between 2010 and 2011 while on a Fulbright scholarship, and completed his doctoral dissertation, “Police, Paramilitaries, Nationalists, and Gangsters: The Processes of State Building in Korea,” last year.

The dissertation can be found here. The section I've read so far looks at how the Korean government privatized the redevelopment process in the 1980s, following the development of Mok-dong, and examines how gangs are subcontracted to evict recalcitrant tenants, looking specifically the Yongsan incident in 2009 and the evicting of vendors in Insadong in 2011. Both the article and the dissertation make for interesting reading,

The nine-hour occupation of Namsan by two GIs in 1973

When I heard about the most recent shooting incident by a Korean soldier, an incident from the 1970s I'd seen mentioned once - perhaps at ROK Drop - came to mind, and I became curious to learn more. Here's the introduction to a New York Times article about the incident, which took place on Monday, April 2, 1973.

2 GI's Occupy Police Tower in the Heart of Seoul
Two American soldiers, armed with light machine guns and M-16 rifles, holed up in a hilltop police box here for nine hours today demanding honorable discharge from Army service and a safe trip out of South Korea.

In truth, I was able to find that article only after searching the Naver News Library and finding the following article published on April 3, 1973, by the Donga Ilbo:

Two armed US soldiers in 9 hour disturbance 
Demand to be discharged, occupy guard post, afterwards turn themselves in

From 10 am on April 2, two American soldiers armed with service weapons occupied the guard post on the hill next to the Namsan TV Antenna and held a sit-in for 9 hours and gave themselves up at 7:40 pm.

USFK headquarters announced on the afternoon of the second that Sgt. Michael McDonald, 25 and private Terry Hergert, 22 from Camp Humphries in Pyeongtaek demanded an honourable discharge from the army, exemption from arrest by Korean and US officials, and being able to safely leave Korea.

Korean military and police blocked off the entire area, and with the help of the US military they were advised to turn themselves in.

That afternoon, after being persuaded by private Johnnie Dunn, who works in Seoul, they turned themselves in and returned to barracks.

USFK authorities disclosed that they were arrested and are under investigation.

A spokesperson for USFK headquarters expressed regret for the incident to the people of Korea.

We're provided with basic information above, but its source is clearly USFK (made clear by the fact that in Korean, the article lists their names and ranks followed by numbers (이이), (이오), which I correctly guessed were their ages; apparently a translator didn't quite understand that). A lot has been left out, as the following Stars and Stripes article (which began on page one of the Pacific edition) published on April 4, 1973 reveals:

That's quite the "veritable arsenal of weapons" that they had: "at least three high-caliber machine guns, two grenade launchers, two M16 automatic rifles, shotguns, pistols, more than a thousand rounds of ammunition, at least two cases of grenades, blankets, several days' supply of field rations and other assorted items[.]" Yikes. One wonders what led them to take such drastic - if ridiculous - action.

From the police and military response, with even the C-in-C of UN command making an appearance and soldiers surrounding the mountain, it doesn't seem like a minor event, though that's how it was reported in the Donga Ilbo. From the descriptions in the above Stars and Stripes article, it's clear much was left out of the Donga Ilbo's account. Though S&S describes Korean police as having described the nine people as hostages, the Donga Ilbo did not, perhaps due to censorship for the sake of the alliance? 

On July 1, 1973. Stars and Stripes reported on the upcoming trial of the GIs for larceny (stealing the weaponry) and aggravated assault, which would suggest that claims by US military officials that the nine persons held by the two soldiers weren't 'hostages,' and that 'they were at no time forced to stay in the building' were false.

On July 26, 1973, Stars and Stripes reported on the outcome of the trial:

We're still left with no explanation of why the soldiers did what they did. Would any readers out there have any idea? One also wonders what kind of sentence they would have gotten if they had actually fired the weapons.

To go off on a tangent, in this case regarding Seoul's history, I found the mention of a construction worker "who was working on a nearby television tower" to be of interest. That tower was Namsan Tower, which, according to Wikipedia, was completed, in its initial form, in December 1971. Apparently, it wasn't until 1975 that the upper observatory was added to the tower; one assumes it was this that was under construction when the incident took place in 1973. As Wikipedia tells us, "The tower was open to the public for the first time on October 15, 1980." To get an idea of what the tower looked like without the upper observatory, here is a shot taken in 1972, which is from a Naver Cafe (to get to it click on any of the photos here):

It's interesting to see such an iconic structure in an incomplete form.

Criminal record checks mandated by the 2011 Hagwon Law revision dropped for those with E-2 Visas

I missed this story when KBS reported it on December 17:

Government simplifies the criminal background check process for foreign instructors

The criminal background check process for foreign instructors wanting to work in our country's hagwons is being simplified.

Today during a cabinet meeting the government deliberated over and decided upon the "Bill to Revise the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lesson."

According to this bill, foreign instructors who have submitted criminal record checks to places like overseas embassies or consulates do not have to submit criminal record checks once again to the managers of hagwons.

The amendment described above can be found here, and it mentions that civil petitioners (most likely hagwon owners or the hagwon owners' association) were considered when drafting the revised bill. If we remember, in 2011 an amendment was made to the 'Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons' calling for all foreigners working for hagwons to submit criminal record checks, proof of educational background and drug tests (with the partial aim of making sure non-E-2 visa holders were verified). Instead of taking into account that E-2s were already receiving these checks, it turned into a ridiculous requirement for submitting documents to both the MOJ and MEST, and even of the need to re-submit documents for those who are already here. Exemplary news outlets like NoCut News reported that drug tests weren't being implemented for foreign hagwon teachers (see the article "A stoned native speaking instructor and my child...?!"), and, along with other media outlets like Newsis (which reported "Only 1 out of 10 foreign instructors in Seoul hagwons are verified"), ignored the fact that all foreign hagwon teachers on E-2 visas had already submitted these documents. In fact, during its racist fair and even-handed series July 2012 nine-part series "The Reality and Twisted Values of Some White Men," NoCut News reported upon and castigated the proposed revision which was passed a month ago, based entirely on flawed 'reasoning.'

It's nice to see this passed at a cabinet meeting (and a better result than the last time the government dealt with a bill at year's end regarding foreign teachers), though nothing was mentioned about the possible duplication of drug testing or diploma submitting.

Korea Herald article on HIV testing of foreign English teachers

A Korea Herald article by John Power published Monday asks "Is HIV testing of foreign teachers here to stay?" Here are some excerpts:

But, amid a pending U.N. committee ruling on whether the policy constitutes racial discrimination, an unclear picture of the current status and future of testing has emerged across government and educational bodies.

A press officer at the Seoul Metropolitan Office of Education on Thursday told The Korea Herald that all local education offices had scrapped retesting for contract renewal as of this year.

“Because of problems of fairness between Korean and foreign teachers and discrimination that arose, some education offices did not require testing for contract renewal,” said Kwak Yoon-cheol. “Accordingly, this year all education offices decided to end testing for contract renewal.”

He said, however, that foreign teachers were still required by immigration to submit test results after their initial entry into Korea. The Korea Herald communicated with several native English teachers who said they had been retested recently, in some cases just weeks previously. [...]

A Justice Ministry spokesman confirmed on Monday that one-time testing for immigration purposes was still in place, after earlier claiming the ministry had no such requirement.

An official with Korea Immigration Service, a division of the Justice Ministry, however, also said there had been no change in policy.

“We have not changed any of our policies on HIV testing,” Lee You-jin, a member of the residence and visa division of KIS, said via email on Nov. 19. [...]

In the past, the Justice and Education Ministries have taken different positions on the issue, specifically on the need for in-country retesting.

An official at the National Institute for International Education, the division of the Education Ministry that runs the EPIK NET program, told The Korea Herald in 2010 that it supported enshrining retesting as official policy. At the time the organization cited parental concerns and the results of two surveys showing strong public support for testing as rationale for its stance. It is not clear whether those surveys referred to one-time or multiple testing.

But an NIIED official, speaking on condition of anonymity, last week declined to confirm if this was still the organization’s position.

“We let each educational office know about the current regulations of the Ministry of Justice,” said the official. “So when we have annual meetings, if there are questions or issues we just give them information about current regulations and they are the ones who should decide, considering the regulations and other factors in their areas.”

Do read the entire thing. It's nice to get some confirmation that re-testing is being scrapped in some locales, and it's certainly interesting that immigration wrote that HIV testing "was still in place, after earlier claiming the ministry had no such requirement." I guess the left hand doesn't know what the right is doing. Earlier confusion over re-testing was reported on in this 2010 Korea Herald article.

Since we're mentioning the Ministry of Education, I guess I'll toss in this interview with the minister of Education sent to me a few weeks ago.

Joongang Daily hopes Japan will "turn more proactive in banning racial discrimination"

So two weeks ago a Japanese court ordered the anti-Korean group Zaitoku-kai ["an association of citizens who do not tolerate privileges for Korean residents in Japan"] to stop a "hate speech" campaign and awarded damages in the case. As Agence France-Presse continues,

A civil court in Kyoto also ordered the group and its activists to pay some 12 million yen ($120,000) in damages to the elementary school run by affiliates of the pro-North Korean General Association of Korean Residents in Japan.

The Joongang Daily offered its suggestion to Japan in an editorial titled "Japan must act against hate."

A Japanese local court for the first time recognized hate speech as a crime, ordering an association of ultra-nationalist civilian groups campaigning against non-Japanese residents to pay damages to a school run by pro-North Korea residents in Japan. The court said the rallies and language used by Zaitokukai and its supporters, held near the school, were illegal because they go against an international treaty that bans racial discrimination. It is the first such case in Japanese judiciary history and will likely rein in activities that menace Korean residents in Japan as people can now file suit against hate speech and activities by anti-Korean groups.

Zaitokukai has recently been more blunt and aggressive in its protests and propaganda against non-Japanese residents, thanks to a passive response by the conservative government. Japan is a member of the International Convention on the Elimination of All Forms of Racial Discrimination and yet does not punish racial discrimination. The latest court ruling was a civil case, not criminal. It remains unclear if the Japanese government and legislature could revise the law in order to create the legal grounds to punish racial discrimination. Tokyo rebuffed advice by the United Nations Committee on Economic, Social, and Cultural Rights in May to draw up an anti-discrimination law, saying it does not have any bigotry that demands a law.

The Seoul government issued a statement that it strongly wished the ruling would help stop racial discrimination and other activities against ethnic Koreans.[...]

We hope Japanese society will turn more proactive in banning racial discrimination and hate speech. The government must also act to rein in the improper activities of Zaitokukai and other similar groups. [Emphasis added.]

I'm not entirely sure why the Joongang Daily pointed out that "Japan is a member of the International Convention on the Elimination of All Forms of Racial Discrimination and yet does not punish racial discrimination," because Korea is also a member of CERD -  and  has done even less in regard to racial discrimination, particularly in regard to citing to CERD, and also lacks an anti-discrimination law.

This may be the first use of CERD in Japan to punish hate speech, but it certainly isn't the first use of CERD to punish racial discrimination. It was in fact a case in 1999 - Bortz v. Suzuki - which first cited to CERD. In the case, a Brazilian woman who was told to leave a jewelry store sued the owner and eventually won damages of 1.5 million yen ($12,500). As this translated opinion points out, Asians in Japan are more likely to "experience subtler, perhaps more deeply-rooted, forms of discrimination," while non-Asian foreigners are more likely to "experience more overt forms of discrimination" such as "ejection from a store, denial of entrance into a store, rejection on a housing application, being shooed away."

These acts clash with notions of fundamental fairness that westerners expect in society. For the westerner, the lawsuit is the preferred method of restoring persons injured by such behavior. The challenge for Bortz was where to find relevant law. The Japanese Constitution prohibits discrimination based on race, but only for its own citizens. Bortz’s lawyer had the vision to invoke the U.N. Convention to End All Forms of Racial Discrimination (CERD), which Japan signed in 1996. Judge Soh Tetsuro likewise exhibited creativity in applying international law domestically, via tort law, to fashion a modest, but unprecedented, remedy for Bortz.

While the ROK has been a party to the ICERD since 1978 (18 years longer than Japan) and has declared that the treaty "has the same authority of domestic law and does not necessitate additional legislation," no court in Korea has ever cited to CERD, even when it has been brought to its attention (such as in this case). Japan, on the other hand, has had a handful of successful suits seeking damage for racial discrimination.

In addition, while Japan never signed the optional protocol which allows individuals to bring a case against the state itself, Korea did, but - again - it had never been used until the case of a foreign English teacher who lost her job for refusing to do an HIV test for contract renewal was accepted by the CERD committee last July. Not many people in Korea would know about this, of course since no media outlet - Joongang Ilbo included - reported on the case. And again, Korea responded to this case 9 months later - 6 months after the deadline. And as was noted here, in its reply

[t]he government neither denied that foreign teachers face mandatory HIV tests nor claimed the tests were necessary for public health reasons. In fact, it said nothing about the testing of foreign teachers upon entry, and countered that Education Ministry guidelines no longer require re-testing upon renewal of annual contracts.

Which is, to put it gently, completely untrue. But yeah, get your act together, Japan!


As Agence France-Presse notes,

In handing down the ruling, presiding judge Hitoshi Hashizume said the group’s actions "constituted racial discrimination as defined by the International Convention on the Elimination of All Forms of Racial Discrimination."

"The actions are deemed intended to arouse a sense of discrimination among the public toward Korean residents in Japan," he said.

Hate speech, per se, is not illegal in Japan. The civil court’s ruling turns on the racial element of the outbursts.

In the case of the teacher who lost her job for refusing HIV testing prior to bringing the case to the CERD committee, the CERD was cited in her complaint to the National Human Rights Commission and the Korean Commercial Arbitration Board, but was ignored by both. So, there is no way to appeal directly to the CERD Committee in Japan but courts will cite to it, whereas in Korea you can appeal to the Committee (and wait a long time for a response) but courts have never cited to it.

All of which makes the Joongang Daily urging "Japanese society [to] turn more proactive in banning racial discrimination and hate speech" rather hypocritical, to say the least, especially it makes very clear just whose 'human rights' it's concerned with:

It is the first such case in Japanese judiciary history and will likely rein in activities that menace Korean residents in Japan as people can now file suit against hate speech and activities by anti-Korean groups.

It might be more honest to say the paper - in very correct ethno-nationalist manner - is trying to promote 'Korean rights.'

Now, on the one hand, it could be argued that carrying out protests near a school where participants rant about wanting to kill all Koreans is more serious than passing discriminatory laws requiring drug and HIV testing, and it's certainly more threatening. The thing is, though, if xenophobes and racists get invited to contribute to immigration policy - as they have in Korea - why would they ever need to hold a vocal protest?

Back in early 2011, Anti-English Spectrum - which I will make clear no longer exists after its leader Lee Eun-ung left the website - posted a new introductory message at the top of their (or 'his,' really) site:

These are the goals of the Citizens for Upright English Education:

To realize English education completely taught by Korean English teachers.
The best method is to keep our children away from overheated private English education and throw out unfit native speaking instructors.

To realize a public education system in which the English teachers are all Korean, we must make an effort to compile a budget for Korean English teachers from the more than 300 trillion won of the English education budget wasted on keeping native speaking assistant teachers.

The way public education is now with native speaking instructors simply using their native tongue must disappear.

Also, to provide safe English education for our children, continual monitoring of unfit native speaking instructors should be implemented.

We will inform citizens of misunderstandings caused by native speaking instructors who create distortions, and will also inform about the existence of honest, hard working native speaking instructors.

Moving from depicting foreign teachers as AIDS-infected, drug-addicted, morally unfit child molesters in order to justify demands for ever-stricter health and criminal record checks (which were ultimately granted), by early 2011 they wanted "only domestic English teachers" in public schools, to "keep our children away" from foreign instructors in English hagwons ("overheated private English education"), and to "throw out unfit native speaking instructors" (ie. all of them), thereby ethnically cleansing the sphere of English education in Korea. You can't say they were being unclear about what they wanted, or that they were unambitious.

And if it seemed like they were thinking big, well, why not? They had already accomplished all of their other goals, like continued (and ever stricter) drug and AIDS tests for foreign teachers, demonization of foreign teachers by the media and politicians, and their influence of public opinion in regard to foreign teachers. They complained about 'drinking parties' at GEPIK orientations, got New Daily to report on it, and GEPIK changed its policy. By the end of 2011, the budget issue had already gained traction with enough provincial or city council politicians for GEPIK to dramatically slash its native speaking teacher budget and for Seoul to plan to do the same. So when Lee Eun-ung left the group in 2011, he could do so rest assured that the had accomplished most of his goals, and that to that point attempts to undo them had failed.

I have to wonder how many similar groups in Japan would be able to say that.

[Hat tip to Benjamin Wagner.]

[On a similar topic, Michael Hurt reminded me of this on Facebook last week.]