Joint NGO Written Information
Second Session of the Universal Periodic Review (UPR)
Republic of Korea
25 January 2008
MINBYUN-Lawyers for a Democratic Society, PSPD-People’s Solidarity for Participatory Democracy, Korea Women’s Association United (KWAU), Korean Progressive Network Jinbonet, NGOs in Special Consultative Status with the Economic and Social Council of the Untied Nations
in association with
Buddhism Human Rights Committee, Civic Action for Social Justice, Consolidation for Medical Consumer, Cultural Action, Differently Abled Women United, Disability and Human Rights in Action, Establishment of the center for human rights in military, GONGGAM-Korean Public Interest Lawyers Group, Gyeonggi Women’s Associations United, Intellectual Property Left (IPLeft), Jeju Association for Women’s Rights, Jeju Women’s Association, Joint Committee with Migrants in Korea, Korean Medical Action Groups for Health Rights (KFHR), Korea Health and Medical Workers’ Union (KHMU), Korean Health Professionals for Action (KHPA), Korea Association of Women Theologians, Korea Buddhist Order Association Human Rights Committee, Korea Center for City and Environment Research, Korea Center for United Nations Human Rights Policy (KOCUN), Korea Sexual Violence Relief Center, Korea Women’s Hotline, Korean Coalition for Housing Rights, Korean Women Workers Association, Korean Womenlink, Korean Public & Social Workers’ Union (KPSU), Korea Solidarity for Conscientious Objection (KSCO), Migrants Trade Union, MINKAHYUP Human Rights Group, National Council of Crumbly Man, Pohang Women’s Association, SARANGBANG Group for Human Rights, Taegu-Kyungbuk Women’s Association United, The National Association of Parents for Charm-Education, Women Migrant Human Rights Center in Korea
Part I. Normative and Institutional Framework and Its Implementation
The Constitution and Domestic Legal Effect of International Law
1. The Korean Constitution stipulates that the applicable constituents of its effect are “citizens” rather than everyone. It also differentiates civil rights from social rights where the state has wide discretion and denies the innate inseparability of these two rights. While the Constitution states that international law shall have “the same effect as domestic law”, the binding power of international human rights law has been denied in reality.
National Human Rights Commission of Korea
2. The National Human Rights Commission of Korea has made recommendations on major policies, laws and ordinances and contributed to human rights improvement in detention facilities among others. However, it has been passive in addressing violations in relation to economic, social and cultural rights. Moreover, the Korean government has minimized, distorted or disregarded the recommendations rendered by the Commission and thus hindering overall improvement in human rights.
3. In 2008, the Presidential Transition Committee of President-elect Lee Myung-bak decided to transfer the currently independent Commission, to the executive branch (Office of the President). The decision is based on the lack of understanding on the internationally recognized status of national human rights institutions and the separation of powers among the three branches of government. As the UN High Commissioner for Human Rights has already expressed her serious concerns, this move will substantially erode the independence of the Commission, thus, human rights protection, its implementation and other human rights-related achievements in the Republic of Korea will be dealt a severe setback.
National Action Plan for the Promotion and Protection of Human Rights
4. The Korean government’s National Action Plan for the Promotion and Protection of Human Rights (NAP), has not shown a clear stance on the pressing human rights issues such as the National Security Act, the death penalty and the rights of conscientious objectors to military service. The NAP also neglects the cause of human rights protection for vulnerable people such as sexual minorities.
Government’s Activities on Transitional Justice
5. Although the efforts of the Truth and Reconciliation Commission and other institutions for transitional justice brought to light some past crime of the state, the wrongdoers’ refusal to admit their past crimes and the lack of punitive measures against them has rendered the nature of justice ineffective.
Achievements and Problems of Recent Legislations
6. With the revision of the Criminal Procedure Act and the enactment of the Habeas Corpus Act, the rights of the detainee have been emphasized. However, the revised Criminal Procedure Act reinforces the powers of the police and the prosecutorial office, the Habeas Corpus Act is not completely effective due to the fact that it explicitly excludes non-citizens in immigration detention facilities and fails to exhibit enough concrete means to ensure habeas corpus protections. Furthermore, the Bill of Enactment for the Discrimination Prohibition Act limits the grounds for discrimination and states no effective remedies for administrative institutions.
Ratification of International Human Rights Treaties
7. The Korean government still has not clarified its stance on withdrawing its reservations on a number of provisions of the core human rights treaties. Moreover, it has been passive in ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT) as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). Furthermore, the government has neglected its obligation to implement and disseminate the concluding observations and recommendations of treaty monitoring bodies and made no sincere efforts to cooperate with civil society.
Part II. Major Challenges and Constraints to the Protection of Human Rights
Privatization of Public Services, the Exacerbation of Poverty, Increase in Instability in Employment, the Suppression of the Right to Assembly and Expression, and Discrimination Against Vulnerable People
8. An overall deterioration of economic, social and cultural rights, an increase in poverty levels and a critical setback in social public services of health, education, water and broadcasting are prevalent because the Korean government adopted economic restructuring schemes based on the “economy-first” approach of the International Monetary Fund (IMF) at the end of 1997, and has continued the trend ever since. The Korean government has been aggressively pursuing free trade agreements (FTAs) with the United States and other countries, which severely impede job security and public welfare in the Republic of Korea. There has been a marked increase in irregular workers without minimum employment stability or equal labor rights and a deepening of economic disparity and poverty, especially amongst women. Furthermore, responding to the people’s discontent with this situation, the Korean government is extensively limiting civil and political rights by suppressing the people’s right to assemble and demonstrate through the proliferation of oppressive laws and institutions. Vulnerable groups like persons with disabilities, migrant workers, and sexual minorities are still suffering from both institutional and social discrimination and other human rights violations which in turn are exacerbated by the aforementioned overall human rights situation in Korea.
Part III. Key Human Rights Issues in the Republic of Korea
Right to Life, Liberty and Security of Person
9. The Korean government has not presented any specific policy as to embryo cloning and euthanasia and continues to sustain the death penalty without stating whether they support or condemn capital punishment. Women’s right to health and their right to choose have been violated because of illegal abortion practices. The government should consolidate laws and regulations concerning life ethics, implement legislation on the abolition of the death penalty, and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP2). The government should also supplement the revised Criminal Procedure Act to cover punitive measures against human rights violators, compensatory relief for victims and special protective measures for vulnerable people while reinforcing the positive aspects on the revisions.
Conscientious Objection and Other Human Rights Issues within the Military
10. Conscientious objectors are still being sent to jail due to the fact that it is considered a felony. Moreover, the government’s plan to institute a substitute public service system (which is an alternative to mandatory military service) in 2007 is unlikely to come into fruition. Conscientious objectors to army reserve training are repeatedly punished and forced to pay inordinate fines. The Korean military tribunal and military judges lack independence due to the Minister of Defense hiring personnel who are not a part of the judicial community as judges. Arbitrary detention is prevalent in the military because a considerable number of military personnel have been detained only by the order of their superiors without due process or judicial procedure, while unconvicted prisoners are incarcerated in “substitute cells” (detention cells in the military) for significant periods of time.
Right to Assembly, Expression and Privacy
11. Although the Korean Constitution expressly forbids a license system for assembly, the government is operating a de facto license system through issuing prior disapprovals under the related law which obligates people to report assemblies and demonstrations beforehand. By surrounding areas designated for assemblies and demonstrations with police squad buses, the police prevent people in general from approaching the areas and stifle any sort of communication, effectively rendering nullifying the right to assembly and demonstration. Due to police intervention of transportation from a far distance to assembly locations, the right to assembly is excessively restricted.
12. The National Security Act arbitrarily makes it a criminal act to simply possess books or express views and is in reality expanding in scope because of new legislations which strengthen surveillance and control of communication, etc. Furthermore, the internet, which is the most important and widely used open forum for exchanging diverse views and shaping public opinion, has been regulated by law to prohibit the free expression of political views during the national elections. Individuals are being regulated through control methods such as mandatory status registration system, resident registration numbers, fingerprinting and excessive compilation of personal information. Personal information has been leaked and abused by public institutions, and daily CCTV surveillance in both public and private sectors without legal basis. In addition, a biometric passport system is in the process of being implemented without the general public having any say in the matter.
Migrant Workers and Refugees
13. The Industrial Trainee System, implemented via invitation by Korean companies investing overseas, still exists, and does not recognize trainees as lawful workers. Even workers under the Employment Permit System cannot enjoy the rights guaranteed by law because they are bound to certain employers with limitations on workplace transfer. The arrest, detention, forced deportation of undocumented migrants have been carried out with excessive force out of accordance with the Constitution and other related laws. Furthermore, indefinite detention is justified by law and the migrants are unable to advocate their rights because of a mandatory reporting system of civil servants.
14. Asylum seekers are deprived of any legal means to maintain their living, while the process for refugee status determination fails to provide fairness and transparency due to the lack of an independent screening body and adequate translators. Even recognized refugees still face obstacles in fully exercising their rights to be protected under the Convention and Protocol relating to the Status of Refugees, except for the rights to stay and to be employed.
Right to Social Security
15. Although there has been some improvement in the Korean welfare system, it cannot be characterized as being universal that is being inclusive of all the members of Korean society. Rather, it is a selective system which provides coverage only for some people in the low-income bracket or those who are considered extremely poor. In spite of the fact that inequality gets worse with the rich getting richer and the poor getting poorer, there is almost no change in the number of eligible recipients of the Basic Livelihood Security, while the eligibility criteria for basic livelihood security are apparently so rigid as to exclude many of the poor. Moreover, the amount of financial assistance they receive usually cannot cover the actual minimum cost of living. The government, through the retrogressive revision of the Medical Aid Program, an assistance program designed for low-income people, limits the access to health of the poor by requiring them to bear a financial burden for the services. On the other hand, although 1/3 of the elderly in Korea can be considered poor expanding a class of the ‘elderly poor’, but many of them are not subject to the benefits of the National Pension Scheme and the level of the benefits is also too low to provide coverage of those in their old age.
16. The Korean government’s expenditures for public health care is minimal, one of the lowest among OECD countries, while the level of the people’s financial burden is very high. The situation is deteriorating with the government pursuing, in the name of industrialization of health, the “marketization of health services” through the diminution in the rate of public health security, approval of for-profit hospitals, strengthening of private health insurance, and reduction in health insurance expenditures. Taking into consideration that the Korean government’s assistance to the vulnerable people such as the elderly, persons with disabilities, and children, and that its social insurance and public aid system including the Basic Livelihood Security and the National Pension Scheme, has a very limited coverage in spite of the structural soundness of the system, public welfare-related expenditure should be increased to 15% of the GDP within the next 5 years. The criteria for selecting eligible recipients of the Basic Livelihood Security and the Minimum Cost of Living which is the criteria for the amount of financial assistance should be readjusted to realistic levels. Furthermore, a universal basic pension system should be established to cover those excluded from the present National Pension Scheme and to provide people with proper incomes in their old age. Health insurance coverage should be expanded by increasing the funding from the National Treasury from the current 20% to 30%, while wasteful expenditure in the medical system should be siphoned off by implementing a comprehensive rather than specific pricing scheme.
Right to Housing
17. Forced evictions without prior warning are still prevalent, even during winter months or the middle of the night. There is a lack of an effective housing policy covering unregistered dwellings and tenants while the existing housing policy is getting worse. Less than 50% of Koreans actually own homes, while there is a dire lack of public rental housing for the poor and very often the poor cannot afford the housing costs (rent, utility fees, etc.). 2,550,000 habitations including “vinyl houses”, “single rooms in lodgings” and “basement rooms” are below the housing minimum standard as specified by the Korean laws and ordinances. Furthermore, hundreds of farmers in Pyongtaek have lost their homestead because of the recent move by the Yongsan US Army Garrison to that area.
18. The provisions facilitating forced evictions without prior warning must be eliminated. Where there are either public projects or private construction projects, the Korean government should make it mandatory to build rental houses or temporary lodgings for those subject to forced evictions. With the increase of the supply of public rental housing for lower income groups, the government should adopt a rent subsidy system for those who cannot afford even these public rental housing. In order to address the issue of vinyl houses and single rooms in sub-standard lodgings, affordable housing should be supplied, and realistic criteria for eligible residents for public rental housing should also be adopted. Finally, to prevent the excessive economic burden and the destruction of communal cohesiveness, the government should replace their policy of ‘eviction and displacement’ with one of ‘gradual improvement of housing environment’.
19. “Irregular workers” face steep challenges in Korean society; they lack a social safety net and suffer from a disparity between irregular workers and regular workers regarding income and labor conditions. Irregular workers make up nearly 50% of the Korean workers contributing to the deepening of social polarization. New legislation prohibiting discrimination against irregular workers and enforcing the compulsory conversion of irregular workers to regular workers after 2 years of work has been implemented, but corporations have taken advantage of legal loopholes by utilizing methods like massive layoffs, and outsourcing, essentially violating the labor rights of the workers. Contingent workers like cement-mixer drivers and insurance salespersons receive no protection as workers under labor laws and suffer under minimum level of labor conditions.
20. The Korean labor law effectively limits the rights of workers to collective action and strike, while striking workers are arrested and forced to pay excessive amounts in compensation for damage caused during strikes. The Korean government has failed to ratify all of the International Labour Organization (ILO) core conventions while the collective labor rights of civil servants and teachers are severely restricted. The revision of relevant laws, resulted in the elimination of the problematic compulsory arbitration system for so-called “essential public services” such as hospitals, railways, subways, airports, electricity, gas and so on. However, the system was replaced by an “essential activities to be maintained” in those workplaces and increasing the likelihood of substitute workers. Most of the work in those workplaces has been designated as “essential activities to be maintained” effectively interfering with the workers’ right to strike.
21. Despite the abolishment of the “the family head system”, women are still experiencing political, economic, social and cultural discrimination and some of the government’s gender equality policies have been repealed contributing to a lower awareness of women’s human rights in Korea society. Women are exposed to human trafficking, prostitution and domestic violence and comprise nearly 70% of all of the irregular workers in Korea, deprived of social rights and are more exposed to poverty. Contingent workers and care workers who are not recognized under labor and employment laws and other types of irregular workers, who constitute 67.8% of all of the women who work, are suffering from underemployment and low income. To resolve the issue of income inequality based on gender, forms of employment and scales of corporations, the criteria to determine equal pay for equal value of work (adoption of job evaluation models and guidelines from gender sensitive perspective) and a system to address discrimination should be adopted. Taking into consideration that 26.6% of all women workers are employed in workplaces that have a maximum of 5 workers, the Labor Standard Act, which now applies fully only to workplaces with more than 5 employees, should be revised to extend its scope of application to all workplaces. Relevant laws to protect of women’s labor rights and prohibit discrimination should be enacted or revised, and the Healthy Family Act should be revised to encompass the various different types of families such as de facto marriages, foster families and families through cohabitation, while supporting a consistent and realistic living and employment policy which combats poverty amongst women.
22. A comprehensive educational program dealing with various forms of abuse against women (domestic, sexual, prostitution) should be incorporated into the educational system of Korea in general. Migrant women are exposed to the dangers of sexual abuse, “trafficking-like” marriages and domestic violence as well as discrimination based on different cultures. Moreover, their lives in Korea are transitory at best because of their reliance on their Korean spouses for the residential status and their limited eligibility for social security. Many migrant women who enter the country through E-6 visas are exposed to prostitution and “sweatshop” labor or forced into sex industry. The Korean government should enact relevant laws and regulations to ensure the human rights of immigrant foreign spouses, etc., and enact a Trafficking Prevention Act which will address both inbound and outbound human trafficking.
23. Children live under the rigid Korean educational system focused on college entrance examinations, which deprives them of their minimum right to dignity and choice both at home and in school, while a considerable number of children are still suffering from domestic and school violence. Although the number of children living below the poverty line who go hungry is disproportionately large in spite of Korea’s economic status, no substantive efforts have been made to address this problem. Moreover, because of their part-time employee status, juveniles suffer from poor labor conditions where they are withheld pay or underpaid but work for long hours. However, they also lack legislative, institutional protection from this situation.
Persons with Disabilities
24. Although a bill regarding “Anti-Discrimination against and Remedies for Persons with Disabilities Act” has been enacted, employment and income discrimination regarding persons with disabilities still exists. The law ensuring the right to move for persons with disabilities does not guarantee the right to access to roads and buildings, and public transportation for this purpose is far from adequate Furthermore, persons with disabilities who have been institutionalized are often done so without their consent, deprived of their personal relationships and cultural rights, and suffer from poor housing, food conditions, forced labor and violent abuse within the facilities. The “Anti-Discrimination against and Remedies for Persons with Disabilities Act” should include the prohibition of discrimination based on the forms of employment, and the government should endeavor to continuously monitor private sector as well as public sector to do away with discrimination against persons with disabilities. An organization regulating and supervising the welfare facilities should be created and policies encouraging the self-reliance of persons with disabilities should be promoted.
Right to Education
25. Corporal punishment as well as regulation of hair length for juveniles is still prevalent in schools and there is also the stringent restriction on the exercise of the right to assembly or expression through extra-curricular group activities. Primary school education, which was meant to be completely free and compulsory by law, is placing a significant financial burden on families and expensive private instruction is widespread in practice. Furthermore, the continued emphasis on college entrance examination-centered policy is increasing the financial burden on families due to private instruction and is causing a disparity in the quality of education amongst Koreans belonging to different income tax brackets. For a truly free and compulsory primary school education, all supplementary educational expenditures should be provided for by the government and special purpose high schools, which increases the demand for private instruction should be abolished. The government should also prepare concrete measures to implement the recommendations of the UN Committee on Economic, Social and Cultural Rights which mention the alleviation of the financial educational burden on the lower income tax bracket families by the normalization of public educational systems, drastic reforms for the excessive college entrance examination competition, and the promotion of equal accessibility regarding higher education.
26. It is still very difficult for persons with disabilities to receive a proper education. In order to realistically promote education amongst persons with disabilities, the Bill for the Special Education of Persons with Disabilities, which advocates the establishment of schools and classes with specialized teachers catering to persons with disabilities as well as the free compulsory pre-school education for infants with disabilities, should be supported with an adequate budget and personnel. Compulsory education for women with disabilities should be also expanded.
27. In order to reinforce the Free Trade Agreement between Korea and the United States, the Korean government reduced the screen quota system to half of its former state and it has suspended financing for public cultural facilities. Korea voted in favor of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD) at the 2005 October UNESCO General Conference, however, the government has not yet ratified it.