The case of L.G. v. the Republic of Korea. The opinion of the Committee dated May 1, 2015. Communication No. 51/2012.
In 2012, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Korea.
The Committee considered that the policy of mandatory testing, which was applied only to foreign English teachers who were not ethnic Koreans, was not justified by public health interests or anything else and was a violation of the right to work, to be exercised regardless of race, skin color or national or ethnic origin. Thus, there was a violation of article 5 of the Convention on the Elimination of All Forms of Racial Discrimination. In light of the fact that the State party has not conducted a proper assessment in the author's case to determine whether the policy of mandatory HIV testing is based on/AIDS and illicit drug tests criteria for racial discrimination within the meaning of article 1 of the Convention, the Committee concluded that the author's rights under articles 2 and 6 of the Convention had been violated.
As seen from the text of the Opinions, the policy of the authorities of the Republic of Korea (the City Department of Education), which provides for regular HIV testing/AIDS and drug testing, mandatory for foreign native English teachers, constituted racial discrimination in accordance with the definition contained in article 1 of the Convention.
Legal positions of the Committee: According to General Recommendation No. 30 adopted by the Committee, States parties are recommended to "take decisive measures to counteract any tendency to persecute, stigmatize, apply stereotypes or characterize members of non-citizen population groups on the basis of race, skin color, origin, national or ethnic origin, especially by politicians" (paragraph 7.4 of the Opinion),
The Committee's assessment of the factual circumstances of the case: the main problem before the Committee was the question of whether the State party fulfilled its positive obligations to take effective measures after the author's communication that the policy of the requirements of the Municipal Department of Education in the field of employment was based on racial discrimination, that the resulting loss of employment was also discriminatory Character (paragraph 7.2 of the Opinion),
The Committee noted that the author of the communication, who was a national of New Zealand, brought convincing facts of racial discrimination to the attention of the competent authorities of the State party, stating before the Korean Commercial Arbitration Council and the National Human Rights Commission of Korea that the policy of mandatory HIV testing/AIDS and illicit drug testing is based solely on negative stereotypes and stigmatization of native English teachers, which are due to their ethnic origin. The Committee pointed out that the National Human Rights Commission of Korea had refused to consider the author's complaint and that neither the Korean Commercial Arbitration Council nor any other body of the State party had assessed the compliance of the contested medical examination policy with the provisions of the Convention. In light of the fact that the State party has not conducted such an assessment in the author's case in order to determine whether the policy of mandatory HIV testing is based on/AIDS and illicit drug tests criteria for racial discrimination within the meaning of article 1 of the Convention, the Committee concluded that the author's rights under articles 2 and 6 of the Convention had been violated (paragraph 7.3 of the Opinion),
The Committee drew attention to the author's claim that, as a result of her refusal to submit to the disputed mandatory tests for the second time, she was deprived of the opportunity to continue working at school, in violation of article 5 of the Convention. The author noted that foreign teachers of English - ethnic Koreans and Korean teachers are exempt from taking these tests and therefore the decision to conduct them is made not on the basis of the difference between citizens and non-citizens, but rather on the basis of ethnic origin. The Committee indicated: mandatory HIV tests/AIDS for employment purposes, as well as for entry, stay and residence in the Republic of Korea, are considered contrary to international standards, since such measures are ineffective from the point of view of public health interests, discriminatory and harmful to the realization of fundamental rights. The Committee further noted that the State party had not provided any justification for the mandatory testing policy. The Committee also found that during the arbitration procedure at the Korean Commercial Arbitration Council, some officials from the U. City Education Department confirmed HIV tests/AIDS and illicit drug tests were seen as a means of testing the values and morals of foreign English teachers. The State party has not disputed the fact that, by and large, the only reason why the author's contract was not renewed was her refusal to re-take HIV tests/AIDS and the use of illegal drugs. The Committee considered that the policy of mandatory testing, applied only to foreign English teachers who were not ethnic Koreans, was not justified by public health interests or anything else and was a violation of the right to work without distinction of race, skin color or national or ethnic origin, as well as a violation of the State party's obligation to ensure Equality with respect to the right to work as enshrined in article 5 of the Convention (paragraph 7.4 of the Opinion),
The Committee's conclusions: the facts indicated a violation of articles 2, 5 and 6 of the Convention.